EXHIBIT 1.1
17,500,000 Shares of Common Stock
QUANTA SERVICES, INC.
UNDERWRITING AGREEMENT
September 30, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
FIRST ALBANY CAPITAL INC.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
The selling stockholder, First Reserve Fund IX, L.P. (the "Selling
Stockholder"), proposes, subject to the terms and conditions stated herein, to
sell to ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMorgan") and Credit Suisse First Boston
LLC ("CSFB") and each of the other Underwriters named in Schedule I hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom JPMorgan and
CSFB are acting as representatives (in such capacity, the "Representatives") an
aggregate of 17,500,000 shares (the "Firm Shares") of common stock, par value
$0.00001 per share (the "Common Stock"), of Quanta Services, Inc., a corporation
organized and existing under the laws of Delaware (the "Company"). For the sole
purpose of covering over-allotments in connection with the sale of the Firm
Shares, at the option of the Underwriters, the Selling Stockholder also proposes
to sell to the Underwriters up to 2,625,000 additional shares of Common Stock
(the "Additional Shares"). The Firm Shares and any Additional Shares purchased
by the Underwriters are referred to herein as the "Shares." The Shares are more
fully described in the Registration Statement and Prospectus referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-114938), and amendments thereto, and related preliminary prospectuses for
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the Commission under
the Securities Act (the "Securities Act Regulations"). Such registration
statement has been declared effective by the Commission, and the Company has
filed such post-effective amendments thereto (or such preliminary prospectus or
preliminary supplemental prospectus) as may be required under the Securities Act
and the Securities Act Regulations, and each such post-effective amendment has
been declared effective by the Commission and copies of which have heretofore
been delivered to the Representatives. The registration statement, as amended at
the time it became effective, including the prospectus, financial statements,
schedules, an exhibits and information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 434(d)
under the Securities Act, is hereinafter referred to as the "Registration
Statement." If the Company has filed or is required pursuant to the terms hereof
to file a registration statement pursuant to Rule 462(b) under the Securities
Act registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Shares have been registered under the Securities Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Securities Act with the filing of such Rule
462(b) Registration Statement. No stop order suspending the effectiveness of
either the Registration Statement or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
overtly threatened by the Commission. The Company, if required by the Securities
Act and the rules and regulations of the Commission (the "Rules and
Regulations"), proposes to file the Prospectus (as defined below) with the
Commission pursuant to Rule 424(b) under the Securities Act ("Rule 424(b)"). The
prospectus, in the form in which it is to be filed with the Commission pursuant
to Rule 424(b), or, if the prospectus is not to be filed with the Commission
pursuant to Rule 424(b), the prospectus in the form included as part of the
Registration Statement at the time the Registration Statement became effective,
is hereinafter referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the Representatives by
the Company for use in connection with the offering and sale of the Shares
contemplated herein (the "Offering") which differs from the Prospectus (whether
or not such revised prospectus or prospectus supplement is required to be filed
by the Company pursuant to Rule 424(b)), the term "Prospectus" shall also refer
to such revised prospectus or prospectus supplement, as the case may be, from
and after the time it is first provided to the Representatives for such use. Any
preliminary prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule 424 under
the Securities Act is hereafter called a "Preliminary Prospectus." Any reference
herein to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act (as defined below) on or before the effective date of the
Registration Statement, the date of such Preliminary Prospectus or the date of
the Prospectus, as the case may be, and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include (i) the filing of any document under the Exchange Act after the
effective date of the Registration Statement, the date of such Preliminary
Prospectus or the date of the
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Prospectus, as the case may be, which is incorporated therein by reference and
(ii) any such document so filed. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a Preliminary
Prospectus and the Prospectus, or any amendments or supplements to any of the
foregoing shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇").
(b) At the time of the effectiveness of the Registration Statement
or any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b) or Rule 434 under the
Securities Act ("Rule 434"), when any supplement to or amendment of the
Prospectus is filed with the Commission, when any document filed under the
Exchange Act was or is filed and at the Closing Date and the Additional Closing
Date, if any (as hereinafter respectively defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto complied
or will comply in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the Rules and Regulations and did not and
will not contain an untrue statement of a material fact and did not and will not
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus or any related
Preliminary Prospectus in light of the circumstances under which they were made,
not misleading. When any Preliminary Prospectus was first filed with the
Commission (whether filed as part of the registration statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
under the Securities Act) and when any amendment thereof or supplement thereto
was first filed with the Commission, such Preliminary Prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act, the Exchange Act and the
Rules and Regulations and did not contain an untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and warranty is
made in this subsection (b), however, with respect to any information contained
in or omitted from the Registration Statement or the Prospectus or any related
Preliminary Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to the
Company by any Underwriter through the Representatives specifically for use
therein. The parties acknowledge and agree that such information provided by or
on behalf of the Underwriters consists solely of the material included in
paragraphs 4, 10, 11 and 12 under the caption "Underwriting" in the Prospectus.
(c) PricewaterhouseCoopers LLP, who have expressed their opinion
with respect to certain of the financial statements and supporting schedules and
information of the Company and its subsidiaries that are included or
incorporated by reference in the Registration Statement, are independent public
accountants as required by the Securities Act, Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the Rules and Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as disclosed in
the Registration Statement and the Prospectus and in any amendments thereof and
supplements thereto filed with the
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Commission, the Company has not declared, paid or made any dividends or other
distributions of any kind on or in respect of its capital stock and there has
been no material adverse change, or any development that would reasonably be
expected to result in a material adverse change, whether or not arising from
transactions in the ordinary course of business, in (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and each subsidiary of the Company listed
on Schedule II hereto (the "Subsidiaries"), taken as a whole; or (ii) the
long-term debt or capital stock of the Company or any of its Subsidiaries (a
"Material Adverse Change"). Since the date of the latest balance sheet
presented, or incorporated by reference, in the Registration Statement and the
Prospectus, neither the Company nor any Subsidiary has incurred or undertaken
any liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions not in the
ordinary course of business, including any acquisition or disposition of any
business or asset, which are material to the Company and the Subsidiaries taken
as a whole, except for liabilities, obligations and transactions which are
disclosed in the Registration Statement and the Prospectus and in any amendments
thereof and supplements thereto filed with the Commission.
(e) As of September 15, 2004, the authorized, issued and outstanding
capital stock of the Company was as set forth in the Prospectus under the
caption "Description of Capital Stock." All of the issued and outstanding shares
of capital stock of the Company are fully paid and non-assessable and have been
duly and validly authorized and issued, in compliance with all applicable state,
federal and foreign securities laws and not in violation of or subject to any
preemptive or similar right that does or will entitle any person, upon the
issuance or sale of any security, to acquire from the Company or any Subsidiary
any Common Stock or other security of the Company or any Subsidiary or any
security convertible into, or exercisable or exchangeable for, Common Stock or
any other such security (any "Relevant Security"), except for such rights as may
have been fully satisfied or waived prior to the effectiveness of the
Registration Statement. The Shares to be delivered on the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), have been
duly and validly authorized, are duly and validly issued, fully paid and
non-assessable, have been issued in compliance with all applicable state,
federal and foreign securities laws and have not been issued in violation of or
subject to any preemptive or similar right that does or will entitle any person
to acquire any Relevant Security from the Company or any Subsidiary upon
issuance or sale of Shares in the Offering. The Common Stock and the Shares
conform to the descriptions thereof contained or incorporated by reference in
the Registration Statement and the Prospectus. Except as disclosed in the
Registration Statement and the Prospectus, neither the Company nor any
Subsidiary has outstanding warrants, options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, or any contracts or
commitments to issue or sell, any Relevant Security.
(f) The Subsidiaries are the only subsidiaries of the Company within
the meaning of Rule 405 under the Securities Act. Except for the Subsidiaries,
as otherwise disclosed in the Registration Statement and the Prospectus and for
the Company's ownership interest in each of Lightwave LLC and Pivotel, LLC, the
Company holds no ownership or other interest, nominal or beneficial, direct or
indirect, in any corporation, partnership, joint venture or other business
entity. All of the issued shares of capital stock of or other ownership
interests in each Subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned directly or indirectly by
the Company free and clear of any lien,
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charge, mortgage, pledge, security interest, claim, equity, trust or other
encumbrance, or preferential arrangement of any kind whatsoever (a "Lien"),
except to the extent that the capital stock of each of the Subsidiaries is
pledged as security to the lenders under the Credit Agreement dated as of
December 19, 2003 (as amended through the date of this Agreement) between the
Company and the lenders and other parties as set forth therein.
(g) Each of the Company and the Subsidiaries has been duly organized
and validly exists as a corporation, partnership or limited liability company in
good standing under the laws of its jurisdiction of organization. Each of the
Company and the Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation, partnership or limited liability company in
each jurisdiction in which such qualification is required by law, other than
those jurisdictions as to which the failure to be so qualified or in good
standing could not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on (i) the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or prospects
of the Company and the Subsidiaries, taken as a whole; (ii) the long-term debt
or capital stock of the Company or any of its Subsidiaries; or (iii) the
Offering or consummation of any of the other transactions contemplated by this
Agreement, the Registration Statement or the Prospectus (a "Material Adverse
Effect"). Each of the Company and the Subsidiaries has (i) all requisite
corporate, limited liability or limited partnership power and authority, and
(ii) all consents, approvals, authorizations, orders, registrations,
qualifications, licenses, filings and permits of, with and from all judicial,
regulatory and other legal or governmental agencies and bodies and all third
parties, foreign and domestic (collectively, the "Consents"), that are necessary
to own, lease and operate its properties and conduct its business as it is now
being conducted and as disclosed in the Registration Statement and the
Prospectus except, in the case of clause (ii), for any Consents the absence of
which would not reasonably be expected to have a Material Adverse Effect. Each
such Consent is valid and in full force and effect, and neither the Company nor
any Subsidiary has received written notice of any investigation or proceedings
which has resulted in or, if decided adversely to the Company or any Subsidiary,
could reasonably be expected to result in, the revocation of, or imposition of a
materially burdensome restriction on, any such Consent. Each of the Company and
the Subsidiaries is in compliance with all applicable laws, rules, regulations,
ordinances, directives, judgments, decrees and orders, foreign and domestic,
except where failure to be in compliance could not reasonably be expected to
have a Material Adverse Effect.
(h) The Company has full right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated by this Agreement, the Registration Statement and
the Prospectus. This Agreement and the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus have been duly and
validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company.
(i) The execution, delivery, and performance of this Agreement and
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus do not and will not (i) conflict with,
require consent under or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any Lien upon any property or assets of the Company or any Subsidiary
pursuant
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to, any indenture, mortgage, deed of trust, loan agreement or other agreement,
instrument, franchise, license or permit to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their respective
properties, operations or assets may be bound; (ii) violate or conflict with any
provision of the certificate or articles of incorporation, by-laws, certificate
of formation, limited liability company agreement, partnership agreement or
other organizational documents of the Company or any Subsidiary; or (iii)
violate or conflict with any law, rule, regulation, ordinance, directive,
judgment, decree or order of any judicial, regulatory or other legal or
governmental agency or body, domestic or foreign, except (in the case of clauses
(i) and (iii) above) as could not reasonably be expected to have a Material
Adverse Effect.
(j) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance of this Agreement or
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, including the sale and delivery of
the Shares to be sold and delivered hereunder, except the registration under the
Securities Act of the Shares, which has become effective, and such Consents as
may be required under state or foreign securities or blue sky laws or the
by-laws and rules of the National Association of Securities Dealers, Inc. (the
"NASD") or NASD Regulation, Inc. ("NASDR") in connection with the purchase and
distribution of the Shares by the Underwriters, each of which has been obtained
and is in full force and effect.
(k) Except as disclosed in the Registration Statement and the
Prospectus and in any amendments thereof and supplements thereto filed with the
Commission, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which, individually or in the aggregate, (A) has a reasonable probability of
being determined adversely to the Company or any Subsidiary and (B) if
determined adversely to the Company or any Subsidiary, could reasonably be
expected to have a Material Adverse Effect; to the Company's knowledge, no such
proceeding, litigation or arbitration is threatened.
(l) The financial statements, including the notes thereto, and the
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
financial position as of the dates indicated and the cash flows and results of
operations for the periods specified of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus; except as otherwise stated in the Registration Statement and
the Prospectus, said financial statements have been prepared in conformity with
United States generally accepted accounting principles applied on a consistent
basis throughout the periods involved; and the supporting schedules included in
the Registration Statement and the Prospectus present fairly in all material
respects the information required to be stated therein.
(m) There are no pro forma financial statements which are required
to be included or incorporated by reference in the Registration Statement and
Prospectus in accordance with Regulation S-X which have not been included as so
required.
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(n) The Company is subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act and files reports with the Commission on ▇▇▇▇▇.
The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and
the outstanding shares of Common Stock (including the Shares) are listed on the
NYSE (as defined in Section 13(b) below) and the Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or de-listing the Common Stock from the
NYSE, nor has the Company received any notification that the Commission or the
NYSE is contemplating terminating such registration or listing.
(o) The Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(p) Neither the Company nor any of its affiliates that is directly
or indirectly controlled by the Company (each, a "Controlled Affiliate") has
taken, directly or indirectly, any action which constitutes or is designed to
cause or result in, or which could reasonably be expected to constitute, cause
or result in, the stabilization or manipulation of the price of any security to
facilitate the sale or resale of the Shares.
(q) Neither the Company nor any of its Controlled Affiliates has,
prior to the date hereof, made any offer or sale of any securities which could
be "integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Shares pursuant to the Registration Statement.
(r) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(s) The conditions for use of Form S-3 to register the Offering
under the Securities Act, as set forth in the General Instructions to such Form,
have been satisfied.
(t) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and, when read together with the other information in the
Prospectus, do not 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, in the light of the circumstances under which they were
made, not misleading.
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(u) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, will not be, subject to registration
as an "investment company" under the Investment Company Act of 1940, as amended,
and is not and will not be an entity "controlled" by an "investment company"
within the meaning of such act.
(v) Neither the Company nor any Subsidiary is a "holding company,"
or a "subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
(w) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed.
(x) No relationship, direct or indirect, exists between or among any
of the Company or any affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
affiliate of the Company, on the other hand, which is required by the Securities
Act, the Exchange Act or the Rules and Regulations to be described in the
Registration Statement or the Prospectus which is not so described as required.
There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or directors of the
Company or any of their respective family members, except as disclosed in the
Registration Statement and the Prospectus. The Company has not, in violation of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, directly or indirectly, including through a Subsidiary,
extended or maintained credit, arranged for the extension of credit, or renewed
an extension of credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(y) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or any of the Underwriters for a brokerage commission, finder's fee or other
like payment in connection with the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus or, to the Company's knowledge,
any arrangements, agreements, understandings, payments or issuance with respect
to the Company or any of its officers, directors, stockholders, partners,
employees, Subsidiaries or affiliates that may affect the Underwriters'
compensation as determined by the NASD.
(z) The Company and each Subsidiary owns or leases all such
properties as are necessary to the conduct of its business as presently
operated. The Company and the Subsidiaries have good title in fee simple to all
real property and good title to all personal property owned by them, in each
case free and clear of all Liens (i) except such as are described in the
Registration Statement and the Prospectus, (ii) except that all such real and
personal property is subject to mortgages and liens granted as security to the
lenders under the Credit Agreement dated as of December 19, 2003 (as amended
through the date of this Agreement) between the Company and the lenders and
other parties as set forth therein and (iii) except such as do not (individually
or in the aggregate) materially affect the value of such property or
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interfere with the use made or proposed to be made of such property by the
Company and the Subsidiaries; and any real property and buildings held under
lease or sublease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material to, and do not interfere with, the use made and proposed to be made of
such property and buildings by the Company and the Subsidiaries. Neither the
Company nor any Subsidiary has received any written notice of any claim adverse
to its ownership of any real or personal property or of any claim against the
continued possession of any real property, whether owned or held under lease or
sublease by the Company or any Subsidiary, except as could not reasonably be
expected to have a Material Adverse Effect.
(aa) The Company and each Subsidiary owns or possesses adequate
right to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses, formulae, customer lists, and know-how and other intellectual property
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, "Intellectual Property")
necessary for the conduct of their respective businesses as being conducted,
except as could not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries has received any notice of
infringement or conflict with asserted Intellectual Property rights of others,
any notice that any of the technology employed by the Company has been obtained
or is being used by the Company in violation of any contractual obligation
binding on the Company or, to the Company's knowledge, any contractual
obligation binding on any of its officers, directors or employees or otherwise
in violation of the rights of any person, and which such infringement, conflict
or violation, if the subject of an unfavorable decision, would reasonably be
expected to have a Material Adverse Effect.
(bb) Except as disclosed in the Registration Statement and the
Prospectus, the Company and the Subsidiaries maintain insurance or are self
insured with sufficient reserves in such amounts and covering such risks as the
Company reasonably considers adequate for the conduct of its business and the
value of its properties and as is customary for companies engaged in similar
businesses in similar industries, all of which insurance is in full force and
effect, except where the failure to maintain such insurance could not reasonably
be expected to have a Material Adverse Effect. There are no material claims by
the Company or any Subsidiary under any such policy or instrument as to which
any insurance company is denying liability or defending under a reservation of
rights clause. The Company reasonably believes that it will be able to renew its
existing insurance as and when such coverage expires or will be able to obtain
replacement insurance adequate for the conduct of the business and the value of
its properties at a cost that would not have a Material Adverse Effect.
(cc) Subject to applicable deductibles and customary limitations and
exceptions, the Company has in effect insurance covering the Company and its
directors and officers for liabilities or losses arising in connection with this
Offering, including, without limitation, liabilities or losses arising under the
Securities Act, the Exchange Act and the Rules and Regulations.
(dd) Each of the Company and the Subsidiaries has, in all material
respects, accurately prepared and timely filed all federal, state, foreign and
other tax returns that are required to be filed by it and has paid or made
provision for the payment of all taxes,
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assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
Subsidiary is obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return). No deficiency
assessment with respect to a proposed adjustment of the Company's or any
Subsidiary' federal, state, local or foreign taxes is pending or, to the
Company's knowledge, threatened. The accruals and reserves on the books and
records of the Company and the Subsidiaries in respect of tax liabilities for
any taxable period not finally determined are adequate to meet any assessments
and related liabilities for any such period and, since the date of most recent
audited financial statements, the Company and the Subsidiaries have not incurred
any liability for taxes other than in the ordinary course of its business. There
is no tax lien, whether imposed by any federal, state, foreign or other taxing
authority, outstanding against the assets, properties or business of the Company
or any Subsidiary.
(ee) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the Company's knowledge, is imminent which,
(individually or in the aggregate), could reasonably be expected to have a
Material Adverse Effect.
(ff) No "prohibited transaction" (as defined in either Section 406
of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA") or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time (the
"Code")), "accumulated funding deficiency" (as defined in Section 302 of ERISA)
or other event of the kind described in Section 4043(b) of ERISA (other than
events with respect to which the 30-day notice requirement under Section 4043 of
ERISA has been waived) has occurred with respect to any employee benefit plan
for which the Company or any Subsidiary would have any liability which could
(individually or in the aggregate) reasonably be expected to have a Material
Adverse Effect; each employee benefit plan for which the Company or any
Subsidiary would have any liability is in compliance in all material respects
with applicable law, including (without limitation) ERISA and the Code; the
Company has not incurred and does not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from any "pension
plan;" and each plan for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or by failure to act, which could cause
the loss of such qualification.
(gg) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any kind
of toxic or other wastes or other hazardous substances by, due to, or caused by
the Company or any Subsidiary (or, to the Company's knowledge, any other entity
for whose acts or omissions the Company is or may be liable) upon any property
now or previously owned or leased by the Company or any Subsidiary, or upon any
other property, which would be a violation of or give rise to any liability
under any applicable law, rule, regulation, order, judgment, decree or permit
relating to pollution or protection of human health and the environment
("Environmental Law"), except for violations and liabilities which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. There has been no disposal, discharge, emission or other release of any
kind onto such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which the
Company or any Subsidiary has
10
knowledge, except as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary has agreed to assume, undertake or provide indemnification for any
liability of any other person under any Environmental Law, including any
obligation for cleanup or remedial action, except as could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
There is no pending or, to the best of the Company's knowledge, threatened
administrative, regulatory or judicial action, claim or notice of noncompliance
or violation, investigation or proceedings relating to any Environmental Law
against the Company or any Subsidiary.
(hh) Neither the Company, any Subsidiary nor, to the Company's
knowledge, any of its employees or any agent acting within the scope of such
agent's authority has at any time during the last five years (i) made any
unlawful contribution to any candidate for foreign office, or failed to disclose
fully any contribution in violation of law, or (ii) made any payment to any
federal or state governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or permitted
by the laws of the United States of any jurisdiction thereof.
(ii) Neither the Company nor any Subsidiary (i) is in violation of
its certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational documents, (ii) is in default under, and no event has occurred
which, with notice or lapse of time or both, would constitute a default under or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
property or assets is subject or (iii) is in violation in any respect of any
law, rule, regulation, ordinance, directive, judgment, decree or order of any
judicial, regulatory or other legal or governmental agency or body, foreign or
domestic, except (in the case clauses (ii) and (iii) above) violations or
defaults that could not (individually or in the aggregate) reasonably be
expected to have a Material Adverse Effect and except (in the case of clause
(ii) alone) for any lien, charge or encumbrance disclosed in the Registration
Statement and the Prospectus.
(jj) The Company is in compliance with applicable provisions of the
Sarbanes Oxley Act that are effective, except where failure to be in compliance
would not reasonably be expected to have a Material Adverse Effect.
Any certificate signed by or on behalf of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
2. Representations and Warranties of the Selling Stockholder. The
Selling Stockholder represents and warrants to, and agrees with, the several
Underwriters as of the date hereof and as of the Closing Date and each
Additional Closing Date that:
(a) This Agreement has been duly authorized, executed and delivered
by the Selling Stockholder. The Selling Stockholder has full legal capacity,
right and authority to sell,
11
transfer and deliver in the manner provided in this Agreement the Shares being
sold by such Selling Stockholder hereunder.
(b) Such Selling Stockholder has good and valid title to the Shares
to be sold by such Selling Stockholder hereto, free and clear of all security
interests, liens, encumbrances, equities or other claims, and, upon delivery of
and payment for such Shares, the Selling Stockholder will deliver to the
Underwriters good and valid title to such Shares, free and clear of all security
interests, liens, encumbrances, equities or other claims.
(c) No consent, approval, authorization, and no order, registration
or qualification of, or filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any court or governmental agency or
body is required for the consummation by such Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained under
the Securities Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the Shares by
the Underwriters and such other approvals as have been obtained.
(d) Neither the sale of the Shares being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms hereof
by such Selling Stockholder will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter, by-laws or other
organizational documents of such Selling Stockholder or the terms of any
indenture or other agreement or instrument to which such Selling Stockholder or
any of its subsidiaries is a party or by which such Selling Stockholder or any
of its subsidiaries is bound, or any statute, rule, regulation, judgment, order
or decree applicable to such Selling Stockholder or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder or any of its
subsidiaries.
(e) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Selling Stockholder and any person that
would give rise to a valid claim against the Selling Stockholder or any of the
Underwriters for a brokerage commission, finder's fee or other like payment in
connection with the transactions contemplated by this Agreement.
(f) Subject to the last sentence of this Section 2(f), at the
respective times that the Registration Statement and any post-effective
amendments thereto became effective and at the Closing Date or Additional
Closing Date, as appropriate, the Registration Statement and any amendments and
supplements thereto did not and will not 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. Subject to the last
sentence of this Section 2(f), neither the Prospectus nor any amendment or
supplement thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date or Additional Closing Date, as
appropriate, included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The representations and warranties in this subsection shall only
apply to statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information furnished to
the
12
Company in writing by the Selling Stockholder expressly for use in the
Registration Statement or the Prospectus, which the parties acknowledge that the
information set forth under the caption "Principal and Selling Stockholder" in
the Prospectus that relates to the Selling Stockholder (the "Selling Stockholder
Statements") constitute the only information furnished in writing by or on
behalf of the Selling Stockholder expressly for use in the Registration
Statement relating to the Shares as originally filed or in any amendment
thereof, related preliminary prospectus or the Prospectus or in any amendment
thereof or supplement thereto, as the case may be.
(g) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or that would constitute or that could reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares in violation of Regulation M under
the Exchange Act.
(h) The Selling Stockholder has not distributed and, prior to the
completion of the distribution of the Shares, will not distribute without the
Representatives' prior written consent, any offering material in connection with
the offering and sale of the Shares other than as permitted by the Securities
Act.
Any certificate signed by or on behalf of the Selling Stockholder and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Selling Stockholder to the
Underwriters as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Stockholder agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Selling Stockholder, at a purchase price per share of $5.491, the
number of shares of Firm Shares set forth opposite the name of such Underwriter
in Schedule I hereto, plus any additional number of Firm Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment of the purchase price for, and delivery of certificates
representing, the Firm Shares shall be made at the office of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
LLP, or at such other place as shall be agreed upon by the Representatives and
the Company, at 10:00 A.M., New York City time, on the third or fourth business
day after the determination of the public offering price of the Shares, or such
other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Company (such time and date of payment and
delivery being herein called the "Closing Date").
(c) Payment of the purchase price for the Firm Shares shall be made
by wire transfer in same day funds to the Selling Stockholder upon delivery of
certificates for the Firm Shares to the offices of American Stock Transfer &
Trust Company, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for the account of the
Underwriters through the facilities of The Depository Trust Company for the
respective accounts of the Underwriters. The Selling Stockholder hereby agrees
that it will pay all stock transfer taxes, stamp duties and other similar
13
taxes, if any, payable upon the sale or delivery of the Firm Shares to be sold
by the Selling Stockholder to the Underwriters, or otherwise in connection with
the performance of the Selling Stockholder's obligations hereunder.
(d) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Selling Stockholder hereby grants to the
Underwriters, severally and not jointly, the option to purchase the Additional
Shares at the same purchase price per share to be paid by the Underwriters to
the Company and the Selling Stockholder for the Firm Shares as set forth in this
Section 3, for the sole purpose of covering over-allotments in the sale of Firm
Shares by the Underwriters. This option may be exercised at any time and from
time to time, in whole or in part on one or more occasions, on or before the
thirtieth day following the date of the Prospectus, by written notice by the
Representatives to the Company and the Selling Stockholder. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time, as reasonably determined by the
Underwriters, when the Additional Shares are to be delivered (any such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full business day after the date on
which the option shall have been exercised nor later than the eighth full
business day after the date on which the option shall have been exercised.
(e) Payment of the purchase price for, and delivery of certificates
representing, the Additional Shares shall be made at the office of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 A.M., New York City time, on the
Additional Closing Date, or such other time as shall be agreed upon by the
Representatives, the Company and the Selling Stockholder.
(f) Payment for the Additional Shares to be sold by the Selling
Stockholder shall be made to or upon the order of the Selling Stockholder of the
purchase price by wire transfer in Federal (same day) funds to the Selling
Stockholder upon delivery of the certificates for the Additional Shares, to the
offices of American Stock Transfer & Trust Company, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, for the account of the Underwriters. The Selling Stockholder
hereby agrees that it will pay all stock transfer taxes, stamp duties and other
similar taxes, if any, payable upon the sale or delivery of the Additional
Shares to be sold by the Selling Stockholder to the Underwriters, or otherwise
in connection with the performance of the Selling Stockholder's obligations
hereunder.
4. Offering. Upon authorization of the release of the Firm Shares by
the Underwriters, the Underwriters propose to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
5. Covenants of the Company; Covenants of the Selling Stockholder.
(a) The Company covenants and agrees with the several Underwriters
that:
(i) The Registration Statement and any amendments thereto have
been declared effective, and if the filing of the Prospectus is required under
Rule 424(b) or Rule 434,
14
the Company will file the Prospectus pursuant to Rule 424(b) within the
prescribed time period and will provide evidence satisfactory to the
Representatives of such timely filing.
The Company will notify you immediately (and, if requested by the
Representatives, will confirm such notice in writing) (A) when the Registration
Statement and any amendments thereto become effective, (B) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for any additional information, (C) of the Company's intention
to file or prepare any supplement or amendment to the Registration Statement or
the Prospectus, (D) of the mailing or the delivery to the Commission for filing
of any amendment of or supplement to the Registration Statement or the
Prospectus, including but not limited to Rule 462(b) under the Securities Act,
(E) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings therefor,
it being understood that the Company shall make every effort to avoid the
issuance of any such stop order, (F) of the receipt of any comments from the
Commission, and (G) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for that
purpose. If the Commission shall propose or enter a stop order at any time, the
Company will make every reasonable effort to prevent the issuance of any such
stop order and, if issued, to obtain the lifting of such order as soon as
possible. The Company will not (i) file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b) or Rule 434) that
differs from the prospectus on file at the time of the effectiveness of the
Registration Statement, or (ii) for so long as the prospectus delivery
requirement is in effect, file any document under the Exchange Act if such
document would be deemed to be incorporated by reference in the Prospectus, in
either case, to which the Representatives reasonably object in writing after
being timely furnished in advance a copy thereof. The Company will provide the
Representatives with copies of all such amendments, filings and other documents
a sufficient time prior to any filing or other publication thereof to permit the
Representatives a reasonable opportunity to review and comment thereon.
(ii) The Company shall comply with the Securities Act and the
Exchange Act to permit completion of the distribution as contemplated in this
Agreement, the Registration Statement and the Prospectus. If at any time when a
prospectus relating to the Shares is required to be delivered under the
Securities Act or the Exchange Act in connection with the sales of Shares, any
event shall have occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Representatives or the Company,
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 existing at the time of delivery to the
purchaser, not misleading, or if to comply with the Securities Act, the Exchange
Act or the Rules and Regulations it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement, or to file any document
incorporated by reference in the Registration Statement or the Prospectus or in
any amendment thereof or supplement thereto, the Company will notify you
promptly and prepare and file with the Commission, subject to Section 5(a)(i)
hereof, an appropriate amendment or supplement (in form and substance
satisfactory to the Representatives) which will correct such statement or
15
omission or which will effect such compliance and will use its reasonable best
efforts to have any amendment to the Registration Statement declared effective
as soon as possible.
(iii) The Company will promptly deliver to each of you and ▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P. ("Underwriters' Counsel") a signed copy of the Registration
Statement, as initially filed and all amendments thereto, including all consents
and exhibits filed therewith, and will maintain in the Company's files manually
signed copies of such documents for at least five years after the date of
filing. The Company will promptly deliver to the Underwriters such number of
copies of any Preliminary Prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, and
all documents incorporated by reference in the Registration Statement and
Prospectus or any amendment thereof or supplement thereto, as you may reasonably
request. Prior to 10:00 A.M., New York time or as promptly as practicable
thereafter, on the business day next succeeding the date of this Agreement and
from time to time thereafter, the Company will furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as you may
reasonably request.
(iv) The Company consents to the use and delivery of the
Preliminary Prospectus by the Underwriters in accordance with Rule 430 and
Section 5(b) of the Securities Act.
(v) The Company will use its reasonable best efforts, in
cooperation with the Representatives, at or prior to the time of effectiveness
of the Registration Statement, to qualify the Shares for offering and sale under
the securities laws relating to the offering or sale of the Shares of such
jurisdictions, domestic or foreign, as the Representatives may designate and to
maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(vi) The Company will make generally available to its security
holders and to the Representatives as soon as practicable, but in any event not
later than twelve months after the effective date of the Registration Statement
(as defined in Rule 158(c) under the Securities Act), an earnings statement of
the Company and the Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company, Rule 158).
(vii) During the period of 90 days from the date of the
Prospectus, without the prior written consent of JPMorgan, the Company (A) will
not, directly or indirectly, issue, offer, sell, agree to issue, offer or sell,
solicit offers to purchase, grant any call option, warrant or other right to
purchase, purchase any put option or other right to sell, pledge, borrow or
otherwise dispose of any Relevant Security, or make any announcement of any of
the foregoing, (B) will not establish or increase any "put equivalent position"
or liquidate or decrease any "call equivalent position" (in each case within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) with respect to any Relevant Security, and (C) will not
otherwise enter into any swap, derivative or other transaction or arrangement
that transfers to another, in whole or in part, any economic consequence of
ownership of a Relevant Security, whether or not such transaction is to be
settled by delivery of Relevant Securities, other securities, cash or other
consideration; and the Company will obtain an
16
undertaking in substantially the form of Annex IV hereto of each of its
executive officers listed on Schedule III hereto during the period of 90 days
from the date of the Prospectus and an undertaking in substantially the form of
Annex IV hereto of each of its executive officers and directors listed on
Schedule IV hereto during the period of 30 days from the date of the Prospectus,
without the prior written consent of the JPMorgan, not to engage in any of the
aforementioned transactions on their own behalf, other than the sale by the
Selling Stockholder of Shares as contemplated by this Agreement and the
Company's issuance of Common Stock (A) upon the conversion or exchange of
convertible or exchangeable securities outstanding on the date hereof; (B) upon
the exercise of currently outstanding options; (C) upon the exercise of
currently outstanding warrants; (D) upon the grant and exercise of options
under, or the issuance and sale of shares pursuant to, employee stock incentive,
option and purchase plans in effect on the date hereof; (E) as required by the
terms of any earn-out provision contained in any agreement existing on the date
hereof to which the Company is a party; (F) upon the exercise by the Selling
Stockholder of its preemptive right to acquire Common Stock with respect to any
issuances of Common Stock pursuant to paragraphs (A) to (E) above or any
issuance of stock prior to the date hereof as to which the Selling Stockholder
has not exercised its preemptive rights. The Company will not file a
registration statement under the Securities Act in connection with any
transaction by the Company or any person that is prohibited pursuant to the
foregoing, except for registration statements on Form S-8 relating to employee
benefit plans or Form S-4 relating to corporate reorganizations or other
transactions under Rule 145.
(viii) During the period of two years from the effective date of
the Registration Statement, the Company will furnish to you copies of all
reports or other communications (financial or other) furnished to security
holders or from time to time published or publicly disseminated by the Company
to the extent not publicly available on ▇▇▇▇▇.
(ix) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Securities Act, the Exchange Act and the Rules and Regulations within the time
periods required thereby.
(x) The Company will use its reasonable best efforts to do and
perform all things required to be done or performed under this Agreement by the
Company prior to the Closing Date or the Additional Closing Date, as the case
may be, and to satisfy all conditions precedent to the delivery of the Firm
Shares and the Additional Shares.
(xi) The Company will not take, and will cause its Controlled
Affiliates not to take, directly or indirectly, any action which constitutes or
is designed to cause or result in, or which could reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Shares.
(b) The Selling Stockholder covenants and agrees with the several
Underwriters:
(i) To deliver to the Representatives prior to the Closing Date,
a properly completed and executed United States Treasury Department Form W-8 (if
the Selling Stockholder is a non-United States Person) or Form W-9 (if the
Selling Stockholder is a United
17
States Person), which in each case may be replaced by any other applicable form
or statement specified by Treasury Department regulations in lieu thereof;
(ii) To notify promptly the Company and the Representatives if,
at any time prior to the date on which the distribution of the Shares as
contemplated herein and in the Prospectus has been completed, as determined by
the Representatives, the Selling Stockholder has knowledge of the occurrence of
any event as a result of which the Selling Stockholder Statements, as then
amended or supplemented, would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
(iii) To cooperate to the extent necessary to cause the
Registration Statement or any post-effective amendment thereto to become
effective at the earliest possible time and to do and perform all things to be
done and performed by it under this Agreement prior to the Closing Date and the
Additional Closing Date, if any, and to cooperate to the extent necessary to
cause the satisfaction of all conditions precedent to the delivery of the Shares
pursuant to this Agreement; and
(iv) To deliver to the Representatives on or prior to the date of
this Agreement the lock-up agreement referenced in Section 7(i) hereof, which
lock-up agreement will be in effect for a period of 90 days.
6. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement,
the Registration Statement and the Prospectus are consummated or this Agreement
is terminated, the Company hereby agrees to pay all costs and expenses incident
to the performance of its obligations hereunder, including the following: (i)
all expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and any
and all amendments and supplements thereto and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Securities Act and the Offering; (iii) the
cost of producing this Agreement, blue sky survey, closing documents and other
instruments, agreements or documents (including any compilations thereof) in
connection with the Offering; (iv) all expenses in connection with the
qualification of the Shares for offering and sale under state or foreign
securities or blue sky laws as provided in Section 5(a)(v) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky survey; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
Offering; (vi) all fees and expenses in connection with listing the Shares on
the NYSE; (vii) all travel expenses of the Company's officers and employees and
any other expense of the Company incurred in connection with attending or
hosting meetings with prospective purchasers of the Shares; (viii) any stock
transfer taxes incurred in connection with this Agreement or the Offering; and
(ix) reasonable out-of-pocket expenses incurred by the Selling Stockholder
related to the offering of the Shares, including, without limitation, all
reasonable expenses incurred directly by the Selling Stockholder for one legal
counsel (other than underwriting fees, discounts and selling
18
commissions). The Company also will pay or cause to be paid: (x) the cost of
preparing stock certificates representing the Shares; (y) the cost and charges
of any transfer agent or registrar for the Shares; and (z) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section 6.
(b) The net price per share paid to the Selling Stockholder in
Section 3(a) reflects all underwriting fees, discounts and selling commissions
payable by the Selling Stockholder. Whether or not the transactions contemplated
by this Agreement, the Registration Statement and the Prospectus are consummated
or this Agreement is terminated, any expenses incident to the performance of its
obligations hereunder and that the Company is not obligated to pay pursuant to
subsection (a) above. Notwithstanding the foregoing, nothing herein shall affect
any agreement that the Company and the Selling Stockholder may make for the
sharing or allocation of such costs and expenses.
(c) Except as provided in this Section 6, and Sections 8 and 9
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel and stock transfer taxes on resale of any of the
Shares by the Underwriters. Notwithstanding anything to the contrary in this
Section 6, the Selling Stockholder will pay all out-of-pocket expenses of the
Underwriters (including but not limited to fees and disbursements of counsel to
the Underwriters) reasonably incurred in connection herewith in the event that
this Agreement is terminated pursuant to Section 7 for the Selling Stockholder's
failure or inability to satisfy any of the conditions relating to the Selling
Stockholder contained in the introductory paragraph to Section 7 or any of the
conditions contained in Section 7(d), (i) (in the case of the Selling
Stockholder), (j) or (k) or pursuant to Section 11 or in the event the Selling
Stockholder defaults in its obligation to sell or deliver the Shares hereunder.
(d) If this Agreement is terminated pursuant to Section 10 or
Section 11 or if for any reason the purchase of the Shares by the Underwriters
is not consummated, the Company and the Selling Stockholder shall remain
responsible for the respective expenses to be paid or reimbursed by each of them
pursuant to this Section 6. If the purchase of the Shares by the Underwriters is
not consummated for any reason other than (A) a default by the Selling
Stockholder in its obligation to sell or deliver the Shares hereunder, (B) the
termination of this Agreement pursuant to Section 10, (C) any reason specified
in subsection (c) above, or (D) the occurrence of any event specified in clause
(i), (ii), (iii) or (iv) of Section 13(b), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by the Underwriters in connection with the offering
of the Shares.
(e) Notwithstanding anything to the contrary in this Section 6, in
the event that this Agreement is terminated, or the purchase of the Shares is
not consummated, as a result of the occurrence of any event specified in (A)
clause (iv) or (vi) of Section 7(f), (B) Section 7(h) or (C) clause (v) or (vi)
of Section 13(b), the Company and the Selling Stockholder agree that they will
each pay 50% of all out-of-pocket expenses of the Underwriters (including but
not limited to fees and disbursements of counsel to the Underwriters) reasonably
incurred in connection herewith.
19
7. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholder herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 7,
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Underwriters' Counsel pursuant to this Section 7 of any
misstatement or omission, to the performance by the Company and the Selling
Stockholder of its respective obligations hereunder, and to each of the
following additional conditions:
(a) The Registration Statement shall have become effective and all
necessary regulatory or stock exchange approvals shall have been received not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to in writing by the
Representatives; if the Company shall have elected to rely upon Rule 434 under
the Securities Act, the Prospectus shall have been filed with the Commission in
a timely fashion in accordance with Section 5(a)(i) hereof and a form of the
Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period; and, at or
prior to the Closing Date no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof shall have been
issued and no proceedings therefor shall have been initiated or threatened by
the Commission.
(b) At the Closing Date you shall have received the favorable
written opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
I.
(c) At the Closing Date you shall have received the favorable
written opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
II.
(d) At the Closing Date, you shall have received the favorable
written opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling
Stockholder, dated the Closing Date, addressed to the Underwriters in the form
attached hereto as Annex III.
(e) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Representatives and to Underwriters' Counsel, and the
Representatives shall have received from Underwriters' Counsel a favorable
written opinion, dated as of the Closing Date, with respect to the issuance and
sale of the Shares, the Registration Statement and the Prospectus and such other
related matters as the Representatives may require, and the Company shall have
furnished to Underwriters' Counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(f) At the Closing Date you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Date to the
20
effect that (i) the condition set forth in subsection (a) of this Section 7 has
been satisfied; (ii) as of the date hereof and as of the Closing Date, the
representations and warranties of the Company set forth in Section 1 hereof are
accurate in all material respects (and in all respects, in the case of
representations and warranties qualified with materiality); (iii) as of the
Closing Date all agreements, conditions and obligations of the Company to be
performed or complied with hereunder on or prior thereto have been duly
performed or complied with; (iv) since June 30, 2004, the Company and the
Subsidiaries, taken as a whole, have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding; (v) no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission; and (vi) subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus there has not been any Material Adverse Change.
(g) At the time this Agreement is executed and at the Closing Date,
you shall have received a comfort letter, from PricewaterhouseCoopers LLP,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date addressed to the Underwriters
and in form and substance satisfactory to the Representatives and Underwriters'
Counsel.
(h) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any Subsidiary or any change or
development involving a change, whether or not arising from transactions in the
ordinary course of business, in the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or prospects
of the Company and the Subsidiaries, taken as a whole, including but not limited
to the occurrence of any fire, flood, storm, explosion, accident or other
calamity at any of the properties owned or leased by the Company or any of its
Subsidiaries, the effect of which, in any such case described above, is, in the
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Prospectus (exclusive of any supplement).
(i) You shall have received a duly executed lock-up agreement from
the Selling Stockholder and each person listed on Schedule III and Schedule IV
hereto, in each case substantially in the form attached hereto as Annex IV on or
prior to the date of this Agreement.
(j) At the Closing Date, you shall have received a certificate of an
authorized representative of the Selling Stockholder, dated the Closing Date, to
the effect that the representations and warranties of the Selling Stockholder
set forth in Section 2 hereof are accurate and that the Selling Stockholder has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date.
(k) On or prior to the Closing Date, you shall have received a
properly completed and executed United States Treasury Department Form W-9 (or
other applicable form
21
or statement specified by Treasury Department regulations in lieu thereof) from
the Selling Stockholder.
(l) The Company shall have furnished the Representatives and
Underwriters' Counsel with such other certificates or other documents as they
may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 7 shall not be satisfactory in
form and substance to the Representatives and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be cancelled by the Underwriters
at, or at any time prior to, the Closing Date and the obligations of the
Underwriters to purchase the Additional Shares may be cancelled by the
Underwriters at, or at any time prior to, the Additional Closing Date. Notice of
such cancellation shall be given to the Company in writing, or by telephone. Any
such telephone notice shall be confirmed promptly thereafter in writing.
8. Indemnification.
(a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriters within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
and all losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (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
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any supplement thereto
or amendment 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; provided, however, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense 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 the
Selling Stockholder Statements or written information furnished to the Company
by or on behalf of any Underwriter through the Representatives expressly for use
therein. The parties agree that such information provided by or on behalf of any
Underwriter consists solely of the material referred to in the last sentence of
Section 1(b) hereof. Notwithstanding the foregoing, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any Preliminary Prospectus the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter (or any person who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) from whom the person asserting any such
losses, claims, damages or liabilities purchased the Shares concerned, to the
extent that a Prospectus relating to such Shares was required to be delivered by
such Underwriter under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Underwriter
22
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Shares to such person, a
copy of the Prospectus (exclusive of material incorporated by reference) if the
Company had previously furnished copies thereof to such Underwriter. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including but not limited to other liability under this
Agreement.
(b) The Selling Stockholder shall indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
against any and all losses, liabilities, claims, damages and expenses whatsoever
as incurred (including but not limited to reasonable attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever and any
and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, liabilities, claims,
damages or expenses (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 Registration Statement for the registration of the Shares, as
originally filed or any amendment thereof, or any related Preliminary Prospectus
or the Prospectus, or in any supplement thereto or amendment 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 but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any Preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Selling Stockholder
expressly for use in the Registration Statement (or any amendment thereto) or
such Preliminary Prospectus or the Prospectus (or any amendment or supplement
thereto). The Underwriters acknowledge that the Selling Stockholder Statements
constitute the only information furnished in writing by or on behalf of the
Selling Stockholder expressly for use in the Registration Statement relating to
the Shares as originally filed or in any amendment thereof, related Preliminary
Prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be. Notwithstanding the foregoing, with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any Preliminary Prospectus the indemnity agreement contained in this subsection
(b) shall not inure to the benefit of any Underwriter (or any person who
controls such Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) from whom the person asserting any such
losses, claims, damages or liabilities purchased the Shares concerned, to the
extent that a Prospectus relating to such Shares was required to be delivered by
such Underwriter under the Securities Act in connection with such purchase and
any such loss, claim, damage or liability of such Underwriter results from the
fact that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Shares to such person, a copy of the Prospectus
(exclusive of material incorporated by reference) if the Company had previously
furnished copies thereof to such Underwriter.
(c) Each Underwriter shall severally and not jointly indemnify and
hold harmless the Company, the Selling Stockholder, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act
23
or Section 20 of the Exchange Act, against any losses, liabilities, claims,
damages and expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (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 Registration Statement, as originally filed or
any amendment thereof, or any related 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 not misleading,
in each case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense 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 information furnished in
writing to the Company by or on behalf of such Underwriter through the
Representatives specifically for use therein. The parties agree that such
information provided by or on behalf of any Underwriter consists solely of the
material referred to in the last sentence of Section 1(b) hereof. This indemnity
will be in addition to any liability which the Underwriters may otherwise have,
including but not limited to other liability under this Agreement.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of any claims or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 8
to the extent that it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability that such indemnifying party
may have otherwise than on account of the indemnity agreement hereunder). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate, at its own expense in the defense of such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided however, that counsel to the indemnifying party
shall not (except with the written consent of the indemnified party) also be
counsel to the indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such counsel
shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties shall
not have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the
indemnifying party does not diligently defend the action after assumption of the
defense, or (iv) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the
24
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties. No indemnifying party shall, without
the prior written consent of the indemnified parties, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened claim, investigation, action or proceeding in respect of which
indemnity or contribution may be or could have been sought by an indemnified
party under this Section 8 or Section 9 hereof (whether or not the indemnified
party is an actual or potential party thereto), unless (x) such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such claim, investigation, action or
proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or any failure to act, by or on behalf of the indemnified party, and
(y) the indemnifying party confirms in writing its indemnification obligations
hereunder with respect to such settlement, compromise or judgment.
9. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 8 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Selling Stockholder
on the one hand and the Underwriters on the other hand shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company and the Selling Stockholder, any contribution received
by the Company and the Selling Stockholder from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company or the Selling Stockholder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, officers of the Company
who signed the Registration Statement and directors of the Company) as incurred
to which the Company, the Selling Stockholder and the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other hand from the Offering or, if such allocation is not
permitted by applicable law, in such proportions as are appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Selling Stockholder on the one hand and the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations; provided, the Selling Stockholder and any
Underwriter shall be obligated to contribute under this Section 9 only with
respect to losses, liabilities, claims, damages or expenses arising out of an
untrue statement or omission or alleged untrue statement or omission of a
material fact made in reliance upon and in conformity with the information
described in Section 8(b) or Section 8(c), respectively, hereunder. The relative
benefits received by the Company and the Selling Stockholder on the one hand and
the Underwriters on the other hand shall be deemed to be in the same proportion
as (x) the total proceeds from the Offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and the
Selling Stockholder bears to (y) the underwriting discount or commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of each of the Company and the
Selling Stockholder on the one hand and of the Underwriters on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or
25
alleged omission to state a material fact relates to information supplied by the
Company or a Selling Stockholder on the one hand or the Underwriters on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholder and each Underwriter further agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any judicial, regulatory or other legal or
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission. Notwithstanding the provisions of this Section 9, (i) no Underwriter
shall be required to contribute any amount in excess of the amount by which the
discounts and commissions applicable to the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, (ii) the Selling
Stockholder shall not be required to contribute any amount in excess of the
total proceeds received by the Selling Stockholder from the offering of the
Shares by the Selling Stockholder by reason of any such untrue statement or
alleged untrue statement or omission or alleged omission, and (iii) 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 was
not guilty of such fraudulent misrepresentation. For purposes of this Section 9,
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company and the Selling Stockholder, as
applicable, subject in each case to clauses (i), (ii) and (iii) of the
immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 9 or otherwise. The
Underwriters' obligations in this Section 9 to contribute are several in
proportion to their respective underwriting obligations and not joint.
10. Underwriter Default. If any Underwriter or Underwriters default in
their obligations to purchase any Shares hereunder on either the Closing Date or
any Additional Closing Date and the aggregate number of Shares that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total number of Shares that the Underwriters are obligated to
purchase on such Closing Date or Additional Closing Date, as applicable, the
Representatives may make arrangements satisfactory to the Company for the
purchase of such Shares by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, or Additional Closing
Date, as applicable, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective
26
commitments hereunder, to purchase the Shares that such defaulting Underwriters
agreed but failed to purchase on such Closing Date or Additional Closing Date,
as applicable. If any Underwriter or Underwriters so default and the aggregate
number of Shares with respect to which such default or defaults occur exceeds
10% of the total number of Shares that the Underwriters are obligated to
purchase on such Closing Date or Additional Closing Date, as applicable, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Shares by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 12
(provided that if such default occurs with respect to Additional Shares after
the Closing Date, this Agreement will not terminate as to the Firm Shares or any
Additional Shares purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
11. Selling Stockholder Default. If the Selling Stockholder shall
default in its obligation to sell and deliver any Shares hereunder, then the
Representatives may, by notice to the Company, terminate this Agreement without
any liability on the part of any non-defaulting party except that the provisions
of Sections 1, 2, 6, 8, 9, 12, 13 and 14 through 19 inclusive hereof shall
remain in full force and effect. No action taken pursuant to this Section 11
shall relieve the Selling Stockholder so defaulting from liability, if any, in
respect of such default.
12. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Selling Stockholder contained in this Agreement or in certificates of officers
of the Company or any Subsidiary or of the Selling Stockholder submitted
pursuant hereto, including the agreements contained in Section 6, the indemnity
agreements contained in Section 8 and the contribution agreements contained in
Section 9, shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Underwriters or any controlling person
thereof or by or on behalf of the Company or the Selling Stockholder, any of
their officers and directors or any controlling person thereof, and shall
survive delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Sections 1 and 2 and the agreements contained in
Sections 6, 8, 9, 12, 13 and 14 through 19 inclusive shall survive any
termination of this Agreement, including termination pursuant to Section 11 or
13 hereof.
13. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the execution of this
Agreement.
(b) The Representatives shall have the right to terminate this
Agreement at any time prior to the Closing Date or to terminate the obligations
of the Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (i) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Representatives will in the immediate future materially disrupt,
the market for the Company's securities or securities in general; or (ii) if
trading on The New York Stock Exchange ("the NYSE"), or The NASDAQ National
Market (the "NASDAQ") shall have been suspended or been made subject to material
limitations, or minimum or maximum prices for trading shall
27
have been fixed, or maximum ranges for prices for securities shall have been
required, on the NYSE, the NASDAQ or by order of the Commission or any other
governmental authority having jurisdiction; or (iii) if a banking moratorium has
been declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; (iv) (A) if there shall have occurred any outbreak or escalation of
hostilities or acts of terrorism involving the United States or there is a
declaration of a national emergency or war by the United States or (B) if there
shall have been any other calamity or crisis or any change in political,
financial or economic conditions if the effect of any such event in (A) or (B),
in the judgment of the Representatives, makes it impracticable or inadvisable to
proceed with the offering, sale and delivery of the Firm Shares or the
Additional Shares, as the case may be, on the terms and in the manner
contemplated by the Prospectus; (v) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries taken as
a whole which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it impractical
or inadvisable to proceed with completion of the public offering or the sale of
and payment for the Shares; or (vi) any suspension of trading of any securities
of the Company on the New York Stock Exchange.
(c) Any notice of termination pursuant to this Section 13 shall be
in writing.
14. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to the Underwriters, shall be mailed, delivered, or
faxed and confirmed in writing, to the Representatives c/o ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Equity
Syndicate and Credit Suisse First Boston LLC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: Transactions Advisory Group, with a copy to ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P. at 1001 ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: T. ▇▇▇▇ ▇▇▇▇▇;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to Quanta Services, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., with a copy to ▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and
(c) if sent to the Selling Stockholder, shall be mailed, delivered,
or faxed and confirmed in writing to ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
provided, however, that any notice to any Underwriter pursuant to Section 8
shall be delivered or sent by mail or facsimile transmission to such Underwriter
at its address set forth in its acceptance facsimile to the Representatives,
which address will be supplied to any other party hereto by the Representatives
upon request. Any such notices and other communications shall take effect at the
time of receipt thereof.
15. Parties. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company and the Selling Stockholder
and the controlling persons,
28
directors, officers, employees and agents referred to in Sections 8 and 9
hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said
controlling persons and their respective successors, officers, directors, heirs
and legal representatives, and it is not for the benefit of any other person,
firm or corporation. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
16. Governing Law and Jurisdiction; Waiver of Jury Trial. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK. Each of the Company and the Selling Stockholder irrevocably
(a) submits to the jurisdiction of any court of the State of New York or the
United State District Court for the Southern District of the State of New York
for the purpose of any suit, action, or other proceeding arising out of this
Agreement, or any of the agreements or transactions contemplated by this
Agreement, the Registration Statement and the Prospectus (each, a "Proceeding"),
(b) agrees that all claims in respect of any Proceeding may be heard and
determined in any such court, (c) waives, to the fullest extent permitted by
law, any immunity from jurisdiction of any such court or from any legal process
therein, (d) agrees not to commence any Proceeding other than in such courts,
and (e) waives, to the fullest extent permitted by law, any claim that such
Proceeding is brought in an inconvenient forum. EACH OF THE COMPANY AND THE
SELLING STOCKHOLDER (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. Time is of the Essence. Time shall be of the essence of this
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
QUANTA SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST RESERVE FUND IX, L.P.
By: First Reserve GP IX, L.P., its general partner
By: First Reserve GP IX, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: Vice President
Accepted as of the date first
above written
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of themselves
and as Representatives of the
other Underwriters named in
Schedule I hereto.
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: Credit Suisse First Boston LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
30
SCHEDULE I
UNDERWRITER NUMBER OF
----------- FIRM SECURITIES
---------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 5,425,000
Credit Suisse First Boston LLC 5,250,000
Banc of America Securities LLC 4,375,000
First Albany Capital Inc. 2,450,000
---------------
Total $17,500,000
===============
SCHEDULE I - 1
SCHEDULE II
SUBSIDIARY STATE OF INCORPORATION
----------------------------------------------------------- ----------------------
Advanced Technologies and Installation Corporation Washington
Airlan Telecom Services, L.P. Texas
Allteck Line Contractors (USA), Inc. Washington
Allteck Line Contractors, Inc. British Columbia
Arby Construction, Inc. Delaware
Austin Trencher, Inc. Delaware
Bradford Brothers, Inc. North Carolina
CCLC, Inc. Delaware
Coast to Coast, LLC California
Communication Manpower, Inc. Florida
▇▇▇▇▇ Communications, Inc. Delaware
▇▇▇▇▇ Electric Company, Inc. Delaware
Crown Fiber Communications, Inc. Virginia
Digco Utility Construction, L.P. Texas
▇▇▇▇▇▇▇ ▇▇▇▇▇ Construction Company Delaware
Driftwood Electrical Contractors, Inc. Delaware
Environmental Professional Associates, Limited California
Five Points Construction Co. Texas
Global Enercom Management, Inc. Delaware
Golden State Utility Co. Delaware
▇.▇. ▇▇▇▇▇▇▇ Pipeline Construction, Inc. Delaware
Intermountain Electric, Inc. Colorado
▇▇▇▇ Construction Company Mississippi
▇▇▇▇▇▇▇ Electric, L.P. Texas
▇▇▇▇▇▇ Bros., Inc. Delaware
▇▇▇▇▇ Canada Corp. Nova Scotia
▇▇▇▇▇ Engineering, LLC Michigan
▇▇▇▇▇ Group, Inc. Delaware
▇▇▇▇▇ Services, LLC Michigan
▇▇▇▇▇/CPG, LLC Michigan
▇▇▇▇▇/HDD, LLC Michigan
Mearsmex de ▇.▇. de C.V Mexico
▇▇▇▇▇ Personnel Services, Inc. Texas
Metro Underground Services, Inc. Illinois
Network Electric Company Delaware
North Houston Pole Line, L.P. Delaware
North Houston Pole Line Corp.
North Pacific Construction Co., Inc. Texas
North Sky Communications, Inc. Delaware
Northern Line Layers, LLC Delaware
Okay Construction Company, LLC Delaware
SCHEDULE II - 1
SUBSIDIARY STATE OF INCORPORATION
------------------------------------------------------ ----------------------
PAR Electrical Contractors, Inc. Missouri
Par Internacional, S. de ▇.▇. de C.V Mexico
Parkside Site and Utility Company Corporation Delaware
Parkside Utility Construction Corp. Delaware
Potelco, Inc. Washington
Professional Teleconcepts, Inc. Illinois
Professional Teleconcepts, Inc. New York
PWR Financial Company Delaware
PWR Network, LLC Delaware
Q Resources, LLC Delaware
QDE LLC Delaware
QPC, Inc. Delaware
QSI, Inc. Delaware
Quanta Asset Management LLC Delaware
Quanta Associates, L.P. Texas
Quanta Delaware, Inc. Delaware
Quanta Government Services, Inc. Delaware
Quanta Government Solutions, Inc. Delaware
Quanta International Limited British Virgin Islands
Quanta LIV Acquisition, Inc. Delaware
Quanta LIX Acquisition, Inc. Delaware
Quanta LVII Acquisition, Inc. Delaware
Quanta LVIII Acquisition, Inc. Delaware
Quanta LX Acquisition, Inc. Delaware
Quanta LXI Acquisition, Inc. Delaware
Quanta LXII Acquisition, Inc. Delaware
Quanta LXIII Acquisition, Inc. Delaware
Quanta LXIV Acquisition, Inc. Delaware
Quanta LXIX Acquisition, Inc. Delaware
Quanta LXV Acquisition, Inc. Delaware
Quanta LXVI Acquisition, Inc. Delaware
Quanta LXVII Acquisition, Inc. Delaware
Quanta LXVIII Acquisition, Inc. Delaware
Quanta LXX Acquisition, Inc. Delaware
Quanta LXXI Acquisition, Inc. Delaware
Quanta LXXII Acquisition, Inc. Delaware
Quanta LXXIII Acquisition, Inc Delaware
Quanta Receivables, L.P. Delaware
Quanta Services Management Partnership, L.P. Texas
Quanta Services of Canada Ltd. British Columbia
Quanta Utility Installation Co., Inc. Delaware
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc. Delaware
S.K.S. Pipeliners, LLC Delaware
Servicios Par Electric, S. de ▇.▇. de C.V Mexico
Southeast Pipeline Construction, Inc. Delaware
SCHEDULE II - 2
SUBSIDIARY STATE OF INCORPORATION
------------------------------------------------------ ----------------------
Southwestern Communications, Inc. Delaware
Spalj Construction Company Delaware
Sumter Utilities, Inc. Delaware
The ▇▇▇▇ Company, Inc. Massachusetts
▇▇▇▇▇▇, L.L.C Delaware
TNS-VA, LLC Delaware
▇▇▇ ▇▇▇▇▇ Construction Company Delaware
Total Quality Management Services, LLC Delaware
Trans Tech Acquisition, Inc. Texas
Trans Tech Electric, L.P. Texas
▇▇▇▇▇▇▇ Construction Co. Florida
TTGP, Inc. Delaware
TTLP, Inc. Delaware
TTM, Inc. North Carolina
TXLP, Inc. Delaware
Underground Construction Co., Inc. Delaware
VCI Telcom, Inc. Delaware
W.C. Communications, Inc. Delaware
W.H.O.M. Corporation California
SCHEDULE II - 3
SCHEDULE III
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
SCHEDULE III
SCHEDULE IV
▇▇▇▇▇ ▇. ▇▇▇▇
Bernadetto ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇'▇▇▇▇ III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE IV
ANNEX I
Form of Opinion of Company Counsel
[▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP LETTERHEAD]
October ___, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
FIRST ALBANY CAPITAL INC.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Quanta Services, Inc.
Ladies and Gentlemen:
We have acted as counsel to Quanta Services, Inc., a Delaware
corporation (the "Company"), in connection with the
Underwriting Agreement dated
September ___, 2004 (the "Agreement") among the Company, First Reserve Fund IX,
L.P., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Credit Suisse First Boston LLC. This
opinion letter is delivered to you pursuant to Section 7(b) of the Agreement.
Capitalized terms used herein have the meanings assigned to them in the
Agreement unless they are otherwise defined herein.
We have reviewed the Registration Statement on Form S-3 (No.
333-114938) (the "Registration Statement"), the Registration Statement on Form
S-3 (No. 333-119134) (the "462(b) Registration Statement" and, together with the
Registration Statement, the "Registration Statements") and such other documents
and made such other investigation as we have considered appropriate for purposes
of this opinion letter. As to certain matters of fact material to the opinions
expressed herein, we have relied on the representations made in the Agreement
and on certificates of public officials and of officers of the Company. We have
not independently established or otherwise verified those facts.
We have assumed, without independent verification or investigation, the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to originals of all documents submitted to us as
copies, and the authenticity of the originals of all such copies. We also have
assumed, without independent verification or investigation, the due
authorization, execution and delivery of the Agreement by the parties thereto
other than the Company.
ANNEX I - 1
Based on the foregoing and subject to the limitations set forth below,
we express the following opinions.
1. The Company is a corporation validly existing and, based solely on a
certificate dated September 20, 2004 of the Secretary of State of the State of
Delaware, in good standing under the law of the State of Delaware. The Company
is duly qualified to transact business and, based solely on a certificate dated
September 20, 2004 of the Secretary of State of the State of Indiana and a
certificate dated September 20, 2004 of the Secretary of State of the State of
Texas, in good standing as a foreign corporation in each jurisdiction identified
in Schedule I.
2. The Company has the corporate power to own its properties and to
conduct the business in which it is engaged as described in the Registration
Statement and the Prospectus.
3. The Company has the corporate power to execute, deliver and perform
its obligations under the Agreement; has taken all corporate action necessary to
authorize that execution, delivery and performance; and has duly executed and
delivered the Agreement.
4. The execution and delivery by the Company of the Agreement do not
and the consummation by the Company of the transactions contemplated thereunder
will not (a) result in a violation of any law of the United States or the State
of New York or Delaware, or any rule or regulation thereunder, assuming the
approvals and filings referred to in clause (b) of this paragraph 4 have been
obtained or made, or (b) require any approval from or filing with any
governmental authority under any law of the United States or the State of New
York or Delaware, or under any rule or regulation thereunder, except for the
filings and other actions required under or pursuant to the Securities Act of
1933, as amended (the "Securities Act"), the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and other federal or state securities or "blue
sky" laws and the rules of the New York Stock Exchange and the NASD, as to which
we express no opinion in this paragraph.
5. The execution and delivery by the Company of the Agreement do not,
and the consummation by the Company of the transactions contemplated thereunder
will not, (a) result in a violation of the Certificate of Incorporation or the
By-laws of the Company, or (b) result in a violation of, or the creation or
imposition of any lien or other encumbrance upon any property or assets of the
Company pursuant to, any agreement listed on Schedule II.
6. The Registration Statements and the Prospectus (except for the
financial statements and related notes thereto, the financial statement
schedules and the other financial, statistical, and accounting data included or
incorporated by reference in the Registration Statements or the Prospectus, as
to which we express no opinion in this paragraph) comply as to form in all
material respects with the requirements of the Securities Act and the rules and
regulations thereunder.
7. The statements under the captions "Description of Capital Stock" and
"Underwriting" in the Prospectus and in Item 15 of Part II of the Registration
Statement, insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to
ANNEX I - 2
therein, fairly present the information called for with respect to such legal
matters, documents and proceedings.
8. The Company is not, and after giving effect to the offering and sale
of the Shares as described in the Registration Statement and the Prospectus,
will not be, an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
9. Neither the Company nor any Subsidiary is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
10. The Registration Statements are effective under the Securities Act,
and to our knowledge, no stop order suspending the effectiveness of the
Registration Statements or any post-effective amendment thereof has been issued
and no proceedings therefore have been initiated or overtly threatened by the
Commission, and all filings required by Rule 424(b) under the Securities Act
have been made.
The opinions expressed herein are subject to the effect of (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
similar laws affecting the rights and remedies of creditors generally, and (b)
general principles of equity.
The opinions expressed herein are limited to the federal law of the
United States and the laws of the State of New York and the Delaware General
Corporation Law. The opinions have been rendered as if the Agreement were
governed in all respects by the law of the State of New York without giving
effect to principles of conflicts of laws. We express no opinion with respect to
the enforceability of any choice of law provision in the Agreement.
This opinion letter is delivered to you in connection with the
transactions contemplated by the Agreement. You may not rely on it for any other
purpose or furnish it to any other person, and no other person may rely on it,
without our prior written consent. The opinions expressed herein are rendered as
of the date hereof and do not address facts, circumstances or changes in law
that may occur after that date. We assume no obligation to update or supplement
this opinion letter.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
ANNEX I - 3
SCHEDULE I
Delaware Incorporation
Indiana Qualification
Texas Qualification
ANNEX I - 4
SCHEDULE II
AGREEMENT DATE PARTIES
------------------------------------------------------ -------- --------------------------------------------
Amended and Restated Rights Agreement 10/24/02 Quanta, American Stock Transfer & Trust Co.
Subordinated Indenture regarding 4.0% Convertible 7/25/00 Quanta, Chase Bank of Texas
Subordinated Debentures
First Supplemental Indenture regarding 4.0% 7/25/00 Quanta, Chase Bank of Texas
Convertible Subordinated Debentures
Employment Agreement 3/13/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇ ▇. ▇'▇▇▇▇, III
Employment Agreement 3/13/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 3/13/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Amendment No. 1 to Employment Agreement 6/01/02 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Settlement and Governance Agreement 5/20/02 Quanta, Aquila, Inc. (f/k/a UtiliCorp United Inc.)
Amendment No. 1 to Settlement and Governance Agreement 11/20/02 Quanta, Aquila, Inc. (f/k/a UtiliCorp United Inc.)
Amendment No. 2 to Settlement and Governance Agreement 4/10/03 Quanta, Aquila, Inc. (f/k/a UtiliCorp United Inc.)
Securities Purchase Agreement 10/15/02 Quanta, First Reserve Fund IX, L.P.
Investors' Rights Agreement 10/15/02 Quanta, First Reserve Fund IX, L.P.
Consent Letter 10/15/02 Quanta, Aquila, Inc. (f/k/a UtiliCorp United Inc.)
Amendment No. 1 to Securities Purchase Agreement 12/6/02 Quanta, First Reserve Fund IX, L.P.
Letter Agreement 1/23/03 Quanta, First Reserve Fund IX, L.P.
Letter Agreement 4/17/03 Quanta, First Reserve Fund IX, L.P.
Separation Agreement and General Release 10/24/02 Quanta, ▇▇▇▇▇ ▇▇▇▇▇▇▇
Employment Agreement 5/21/03 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 5/21/03 Quanta, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 5/21/03 Quanta, ▇▇▇▇ ▇. ▇▇▇▇▇▇
Employment Agreement 6/01/04 Quanta, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
4.5% Convertible Subordinated Debentures Resale 10/17/03 Quanta, ▇▇▇▇▇ Fargo National Bank as Trustee
Registration Rights Agreement
ANNEX I - 5
AGREEMENT DATE PARTIES
------------------------------------------------------ -------- --------------------------------------------
Indenture regarding 4.5% Convertible Subordinated 10/17/03 Quanta, ▇▇▇▇▇ Fargo National Bank as Trustee
Debentures
Credit Agreement 12/19/03 Quanta, Bank of America
First Amendment to Credit Agreement 7/22/04 Quanta, Bank of America
Security Agreement 12/19/03 Quanta, Bank of America
Pledge Agreement 12/19/03 Quanta, Bank of America
2001 Stock Incentive Plan, as amended and restated 03/13/03 Quanta
ANNEX I - 6
[▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP LETTERHEAD]
October ___, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
FIRST ALBANY CAPITAL INC.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: Quanta Services, Inc.
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (No.
333-114938) (the "Registration Statement"), the Registration Statement on Form
S-3 (No. 333-119134) (the "462(b) Registration Statement" and, together with the
Registration Statement, the "Registration Statements"), the prospectus
supplement dated September ___, 2004 (the "Prospectus Supplement") and the base
prospectus dated June 30, 2004 (together with the Prospectus Supplement, the
"Prospectus") of Quanta Services, Inc. (the "Company") as to which we have acted
as counsel. This letter is furnished to you pursuant to Section 7(b) of the
Underwriting Agreement dated September ___, 2004, among the Company, First
Reserve Fund IX, L.P., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and Credit Suisse First
Boston LLC (the "Agreement"). Capitalized terms used herein have the meanings
assigned to them in the Agreement unless they are otherwise defined herein.
The primary purpose of our professional engagement was not to establish
or confirm factual matters or financial or quantitative information, and many
determinations involved in the preparation of the Prospectus are of a non-legal
character. In addition, we have not undertaken any obligation to verify
independently any of the factual matters set forth in the Prospectus or in the
documents incorporated by reference therein and filed prior to the date hereof
(the "Incorporated Documents"). Consequently, in this letter we are not passing
upon and do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained or incorporated by reference in the
Prospectus. Also, we do not make any statement herein with respect to any of the
financial statements or related notes thereto, the financial statement schedules
or the financial, statistical or accounting data contained or incorporated by
reference in the Prospectus.
We have reviewed the Prospectus including the Incorporated Documents
and we have participated in conferences with representatives of the Company, its
independent public accountants, and you and your counsel, at which conferences
the contents of the Prospectus, the Incorporated Documents, and related matters
were discussed. However, we did not participate in the preparation of the
Incorporated Documents.
ANNEX I - 7
Subject to the foregoing, we confirm to you that on the basis of the
information we gained in the course of performing the services referred to
above, no facts have come to our attention which cause us to believe that (a)
the Registration Statements, at the time each of them became effective under the
Securities Act of 1933, as amended, and as of the date hereof, contained or
contain any untrue statement of a material fact or omitted or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (b) the Prospectus, as of the date of the
Underwriting
Agreement, and as of date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (c) the
Incorporated Documents, as of the date they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
The statements made herein are set forth solely for your benefit and
are addressed to you solely in your capacity as the Underwriter of the Shares in
connection with the distribution contemplated by the Prospectus. Neither this
letter nor any of such statements may be used or relied upon by you in any other
capacity, or used or relied upon by, or assigned to, any other person (including
any subsequent purchaser or transferee of the Shares), and neither this letter
nor any copies hereof may be furnished to any other person, filed with a
governmental agency, quoted, cited or otherwise referred to without our prior
written consent.
Very truly yours,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
ANNEX I - 8
ANNEX II
Form of Opinion of Company's General Counsel
[
QUANTA SERVICES INC. LETTERHEAD]
October ___, 2004
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
FIRST ALBANY CAPITAL INC.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
I am General Counsel to Quanta Services, Inc., a Delaware corporation
(the "Company") and am delivering this opinion letter pursuant to Section 7(c)
of the
Underwriting Agreement dated September ___, 2004 (the "Agreement") among
the Company, First Reserve Fund IX, L.P. ("First Reserve"), ▇.▇. ▇▇▇▇▇▇
Securities Inc. and Credit Suisse First Boston LLC. Capitalized terms used
herein have the meanings assigned to them in the Agreement unless they are
otherwise defined herein.
I have reviewed the Registration Statement on Form S-3 (No. 333-114938)
(the "Registration Statement"), the Registration Statement on Form S-3 (No.
333-119134) (the "462(b) Registration Statement" and, together with the
Registration Statement, the "Registration Statements") and such other documents
and made such other investigation as I have considered appropriate for purposes
of this opinion letter. As to certain matters of fact material to the opinions
expressed herein, I have relied on the representations made in the Agreement and
on certificates of public officials and of officers of the Company. I have not
independently established or otherwise verified those facts. Schedule I hereto
lists certain subsidiaries of the Company (the "Significant Subsidiaries").
I have assumed, without independent verification or investigation, the
genuineness of all signatures, the authenticity of all documents submitted to me
as originals, the conformity to originals of all documents submitted to me as
copies, and the authenticity of the originals of all such copies. I also have
assumed, without independent verification or investigation, the due
authorization, execution and delivery of the Agreement by the parties thereto
other than the Company.
Based on the foregoing and subject to the limitations set forth below,
I express the following opinions.
ANNEX II - 1
1. Each of the Significant Subsidiaries is a corporation validly
existing and in good standing under the laws of its state of incorporation. Each
of the Significant Subsidiaries is duly qualified to transact business and is in
good standing as a foreign corporation in each jurisdiction identified in
Schedule II except as otherwise noted thereon.
2. Each of the Significant Subsidiaries has the corporate power to own
its properties and to conduct the business in which it is engaged as described
in the Registration Statement and the Prospectus.
3. The authorized capital stock of the Company consists of 300,000,000
shares of common stock, par value $.00001 per share, 3,345,333 shares of limited
vote common stock, par value $.00001 per share, and 10,000,000 shares of
preferred stock, par value $.00001 per share. All of the issued and outstanding
shares of capital stock of the Company, including the Shares to be delivered on
the Closing Date and the Additional Closing Date, are duly authorized, validly
issued, fully paid and nonassessable, and have not been issued in violation of
or subject to any preemptive or, to my knowledge, similar rights pursuant to law
or the Company's Certificate of Incorporation. All of the issued and outstanding
shares of capital stock of each Significant Subsidiary are duly authorized,
validly issued, fully paid and nonassessable, and are owned by the Company
directly or through subsidiaries, free and clear of all Liens, except that the
shares are pledged as security under the Company's credit agreement dated as of
December 19, 2003.
4. Except for the preemptive rights held by First Reserve, to my
knowledge, no stockholder of the Company has any contractual preemptive right,
right of first refusal, or similar right to subscribe for or purchase securities
of the Company.
5. The Shares to be sold to the Underwriter under the Agreement are
listed on the New York Stock Exchange.
6. To my knowledge, there are no legal or governmental actions, suits,
or proceedings pending or overtly threatened against or affecting the Company or
its Subsidiaries to which (i) the Company or any of its Subsidiaries is a party
or (ii) which has as the subject thereof any property of the Company or any of
its Subsidiaries, where in any such case (A) there is a reasonable possibility
that such action, suit or proceeding might be determined adversely to the
Company or such Subsidiary and (B) any such action, suit or proceeding, if so
determined adversely, would reasonably be expected to, individually, or in the
aggregate, have a Material Adverse Effect.
7. The execution and delivery by the Company of the Agreement do not,
and the consummation by the Company of the transactions contemplated thereunder
will not: (i) result in a violation of, or the creation or imposition of any
lien or other encumbrance upon any property or assets of any Significant
Subsidiary pursuant to, any of the terms, conditions, or provisions of any
agreement known to me to which any Significant Subsidiary is a party or by which
it is bound, except for such conflicts, defaults, or violations that would not
reasonably be expected to have a Material Adverse Effect, or (ii) result in a
violation of (a) any of the terms, conditions, or provisions of the charter or
by-laws of any Significant Subsidiary, (b) any Texas, Delaware
ANNEX II - 2
corporate, or federal law or regulation applicable to any Significant Subsidiary
(other than federal and state securities or blue sky laws, as to which I express
no opinion in this paragraph), or (c) to my knowledge, any judgment, decree,
order, writ or injunction of any court or governmental authority binding on the
Company or any Significant Subsidiary.
8. To my knowledge, neither the Company nor any Significant Subsidiary
is in violation of its charter or its by-laws or any law, administrative
regulation or administrative or court decree applicable to the Company or any
such Significant Subsidiary, or is in default in the performance or observance
of any of the terms, conditions, or provisions of any agreement to which the
Company or any such Significant Subsidiary is a party or by which it or its
property is bound, except for such conflicts, defaults, or violations that would
not, individually or in the aggregate, have a Material Adverse Effect.
In addition, I have participated in conferences with representatives of
the Company, its independent public accountants, and you and your counsel, at
which conferences the contents of the Prospectus, the documents incorporated by
reference therein (the "Incorporated Documents"), and any supplements or
amendments thereto, and related matters were discussed, and although I am not
passing upon and I do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus or the
Incorporated Documents (in each case, other than as specified above), and any
supplements or amendments thereto, on the basis of the foregoing, no facts have
come to my attention which cause me to believe that (a) the Registration
Statements, at the time each of them became effective under the Securities Act
of 1933, as amended, and as of the date hereof, contained or contain any untrue
statement of a material fact or omitted or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, (b) the Prospectus, as of the date of the
Underwriting Agreement,
and as of date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (c) the
Incorporated Documents, as of the date they were filed with the Commission,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that I express no belief as to the financial
statement schedules or the financial, statistical, or accounting data derived
therefrom included or incorporated by reference in the Prospectus or any
amendments or supplements thereto).
The opinions expressed herein are limited to the laws of the State of
Texas, the corporate laws of the State of Delaware, and the federal laws of the
United States, and I express no opinion as to the effect on the matters covered
by this letter of the laws of any other jurisdiction. For the purposes of
Paragraphs 1, 2, 3 and 7 hereof, I have assumed that the laws of the state of
incorporation for each Significant Subsidiary are the same as the laws of the
State of Delaware.
The opinions expressed herein are rendered solely for your benefit in
connection with the transactions described herein. Those opinions may not be
used or relied upon by any other person, nor may this letter or any copies
hereof be furnished to a third party, filed with a governmental agency, quoted,
cited or otherwise referred to without my prior written consent.
ANNEX II - 3
Very truly yours,
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Counsel
ANNEX II - 4
SCHEDULE I
Significant Subsidiaries
1. PAR Electrical Contractors, Inc.
2. ▇▇▇▇ Construction Company
3. Potelco, Inc.
4. Sumter Utilities, Inc.
ANNEX II - 5
SCHEDULE II
1. PAR Electrical Contractors, Inc.
------------------------------------
Alabama Qualification
Alaska Qualification
Arizona Qualification
Arkansas Qualification
California Qualification
Colorado Qualification
Connecticut Qualification
Delaware Qualification
Florida Qualification
Georgia Qualification
Idaho Qualification
Illinois Qualification
Indiana Qualification
Iowa Qualification
Kansas Qualification
Kentucky Qualification
Louisiana Qualification
Maine Qualification
Manitoba Qualification
Maryland Qualification
Massachusetts Qualification
Michigan Qualification
Minnesota Qualification
Mississippi Qualification
Missouri Incorporation
Montana Qualification
Nebraska Qualification
Nevada Qualification
New Hampshire Qualification
New Jersey Qualification
New Mexico Qualification
New York Qualification
North Carolina Qualification
North Dakota Qualification
Ohio Qualification
Oklahoma Qualification
Oregon Qualification
Pennsylvania Qualification
[Puerto Rico Qualification]
Rhode Island Qualification
South Dakota Qualification
Tennessee Qualification
Texas Qualification
Vermont Qualification
ANNEX II - 6
Virginia Qualification
West Virginia Qualification
Wisconsin Qualification
Wyoming Qualification
2. ▇▇▇▇ Construction Company
-----------------------------
Alabama Qualification
Alaska Qualification
Arizona Qualification
Arkansas Qualification
California Qualification
Colorado Qualification
Connecticut Qualification
District of Columbia Qualification
Florida Qualification
Georgia Qualification
Hawaii Qualification
Idaho Qualification
Illinois Qualification
Indiana Qualification
Iowa Qualification
Kansas Qualification
Kentucky Qualification
Louisiana Qualification
Maine Qualification
Maryland Qualification
Michigan Qualification
Minnesota Qualification
Mississippi Incorporation
Montana Qualification
Nebraska Qualification
Nevada Qualification
New Hampshire Qualification
New Jersey Qualification
New Mexico Qualification
New York Qualification
North Carolina Qualification
North Dakota Qualification
Ohio Qualification
Oklahoma Qualification
Oregon Qualification
Pennsylvania Qualification
Rhode Island Qualification
South Carolina Qualification
South Dakota Qualification
Tennessee Qualification
ANNEX II - 7
Texas Qualification
Utah Qualification
Vermont Qualification
Virginia Qualification
Washington Qualification
West Virginia Qualification
Wisconsin Qualification
Wyoming Qualification
3. Potelco, Inc.
-----------------------------
Arizona Qualification
California Qualification
Hawaii Qualification
Idaho Qualification
Illinois Qualification
Missouri Qualification
Nevada Qualification
New Mexico Qualification
North Carolina Qualification
Ohio Qualification
Oregon Qualification
Texas Qualification
Utah Qualification
Washington Incorporation
Wyoming Qualification
Ontario Qualification
4. Sumter Utilities, Inc
---------------------------
Alabama Qualification
Arkansas Qualification
Delaware Incorporation
Florida Qualification
Georgia Qualification
Kentucky Qualification
Louisiana Qualification
Mississippi Qualification
New York Qualification
North Carolina Qualification
Ohio Qualification
South Carolina Qualification
Tennessee Qualification
Texas Qualification
Vermont Qualification
Virginia Qualification
West Virginia Qualification
[Puerto Rico Qualification]
ANNEX II - 8
ANNEX III
Form of Opinion of Selling Stockholder's Counsel
____________, 2004
(▇▇▇) ▇▇▇-▇▇▇▇ 28152-00115
(▇▇▇) ▇▇▇-▇▇▇▇
[UNDERWRITER]
Re: Quanta Services, Inc. Common Stock
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Section __ of the
Underwriting Agreement, dated as of ___________, 2004 (the "
Underwriting
Agreement") among First Reserve Fund IX, L.P., a Delaware limited partnership
("Fund IX" or the "Selling Stockholder"), Quanta Services, Inc., a Delaware
corporation (the "Company"), and you, as underwriter, in connection with the
proposed sale to you by the Selling Stockholder of an aggregate of
_______________ shares (collectively, the "Securities") of common stock of the
Company, par value $0.00001 per share. Capitalized terms used but not defined
herein shall have the meanings set forth in the
Underwriting Agreement.
In rendering the opinions set forth herein, we have examined the
originals, or copies identified to our satisfaction as being true and complete
copies of the originals, of the following documents:
(i) The
Underwriting Agreement;
(ii) The Certificate of Limited Partnership of Fund IX dated
November 3, 2000 (the "Fund IX Certificate of Limited Partnership");
(iii) The Third Amended and Restated Limited Partnership Agreement
of Fund IX dated May 18, 2001, as amended on May 24, 2002 (the "Fund IX Limited
Partnership Agreement");
(iv) A copy of Stock Certificates ____ and ____ registered in the
name of Fund IX and representing the Securities; and
(v) A certificate of a Managing Director of First Reserve Fund IX
G.P., Inc., the General Partner of the General Partner of Fund IX, dated as of
the date hereof.
ANNEX III - 1
We have made such investigations of fact and law, examined such
documents, obtained such certificates from public officials and officers and
representatives of the Selling Stockholder, and done such other things as we
deemed necessary for purposes of rendering this opinion. In connection with such
examination, we have assumed each of the following:
(a) all signatures on documents examined by us are genuine;
(b) all documents submitted to us as originals are authentic and
complete; and
(c) all documents submitted to us as copies are true and correct and
that all information furnished to us is accurate and complete.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, exceptions, assumptions and limitations herein contained, we are
of the opinion that:
1. The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
2. The execution, delivery and performance by the Selling Stockholder
of the Underwriting Agreement (i) do not and will not violate the Fund IX
Limited Partnership Agreement, and (ii) do not and will not breach the terms of
(a) any agreement identified to us in a certificate (attached hereto as Exhibit
A) by the Selling Stockholder as being material to which the Selling Stockholder
is a party or (b) or any order, judgment or decree of any court or other agency
of government identified to us in a certificate (attached hereto as Exhibit A)
by the Selling Stockholder as constituting all orders, judgments or decrees
binding on the Selling Stockholder, in either case based solely on our review of
such agreements, orders, judgments or decrees. The Selling Stockholder has the
limited partnership power and authority to sell, transfer and deliver in the
manner provided in Underwriting Agreement the Securities being sold by the
Selling Stockholder thereunder.
3. The execution and delivery by the Selling Stockholder of the
Underwriting Agreement and the sale by the Selling Stockholder of the Securities
contemplated by the Underwriting Agreement (i) do not and will not violate any
law, rule or regulation currently in effect in the State of New York or the
United States of America applicable to the Selling Stockholder and (ii) do not
and will not require any filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any federal or state
court or governmental authority or agency, other than those that have been
obtained (including those under the 1933 Act and the 1933 Act Regulations) or as
may be required under the state securities or blue sky laws or by the NASD in
connection with the purchase and distribution of the Securities. Other than in
the last clause of the preceding sentence, we are expressing no opinion in this
paragraph regarding federal or state securities laws.
4. Upon (i) payment for the Securities to be sold by the Selling
Stockholder pursuant to the Underwriting Agreement, (ii) physical delivery of
the certificates representing the Securities to the American Stock Transfer &
Trust Company in its capacity as the Company's transfer agent (the "Transfer
Agent"), and registration of the Securities in the name of The Depository Trust
Company ("DTC") or its nominee upon registration of transfer by the Transfer
Agent acting on behalf of the Company, on the Company's share registry, and
(iii) appropriate
ANNEX III - 2
crediting on the books of DTC to the securities account of the Underwriter in
accordance with the New York UCC, (A) DTC will be a "protected purchaser" of
such Securities within the meaning of ▇▇▇▇▇▇▇ ▇-▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇)
under Section 8-501 of the New York UCC, the Underwriter will acquire a valid
security entitlement of such Securities and (C) no action based on any "adverse
claim" (within the meaning of Section 8-102(a)(1) of the New York UCC) to such
Securities may be asserted against the Underwriter with respect to such
securities entitlements.
The foregoing opinions are also subject to the following additional
qualifications, exceptions, assumptions and limitations:
A. For the purposes of the opinions set forth in paragraph 4, we
have assumed that when payment, delivery and crediting with respect to such
Securities occur, (v) neither DTC nor the Underwriter has notice (as determined
in accordance with Section 8-105 of the New York UCC) of any adverse claim to
the Securities, (w) DTC and the Underwriter will acquire its interest in the
Securities for value within the meaning of the New York UCC, (x) DTC will be
registered as a "clearing corporation" within the meaning of Section 8-102(5) of
the New York UCC, (y) the certificates representing the Securities are
maintained in the custody of DTC or a sub-custodian bank or an agent of either
subject to DTC's exclusive control, and (z) the jurisdiction of DTC is the State
of New York as determined in accordance with Section 8-110(e) of the New York
UCC.
B. The opinions set forth in paragraph 2 are limited to agreements,
orders, judgments and decrees that have been identified to us by the Selling
Stockholder and are listed on Exhibit A hereto.
We call your attention to the fact that we are counsel admitted
to practice only in the state of New York, and we do not express any opinion
with respect to the applicable laws, or the effect or applicability of the laws,
of any jurisdiction other than those of the State of New York, the General
Corporation Law and the Revised Uniform Limited Partnership Act as adopted by
the State of Delaware and the laws of the United States of America. We are not
engaged in practice in the State of Delaware, however, we are generally familiar
with the Delaware General Corporation Law and the Revised Uniform Limited
Partnership Act as adopted by the State of Delaware as presently in effect and
have made such inquiries as we consider necessary to render the opinions
contained herein. We do not express any opinion with respect to the "blue sky"
or securities laws of any State or other jurisdiction.
This opinion is limited to the facts as they currently exist
and we assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the closing under the
Underwriting Agreement and should not be quoted in whole or in part or otherwise
referred to, and should not be filed with or furnished to any governmental
agency or other person or entity, without the prior written consent of ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
Very truly yours,
ANNEX III - 3
EXHIBIT A
1. [TO BE PROVIDED]
ANNEX III - 4
ANNEX IV
Form of Lock-Up Agreement
[DATE]
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
FIRST ALBANY CAPITAL INC.
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Quanta Services, Inc. Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed public
offering (the "Offering") by First Reserve Fund IX, L.P. of common stock,
$0.00001 par value (the "Stock") of Quanta Services, Inc., a Delaware
corporation (the "Company").
In order to induce you to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of ▇.▇. ▇▇▇▇▇▇ Securities
Inc. ("JPMorgan"), during the period from the date hereof until [NINETY (90)
DAYS IN THE CASE OF THE SELLING STOCKHOLDER AND THE OFFICERS OF THE COMPANY
IDENTIFIED IN SCHEDULE III TO THE AGREEMENT] [THIRTY (30) DAYS IN THE CASE OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY IDENTIFIED IN SCHEDULE IV TO
THE AGREEMENT] from the date of the final prospectus for the Offering (the
"Lock-Up Period"), the undersigned (a) will not, directly or indirectly, offer,
sell, agree to offer or sell, solicit offers to purchase, grant any call option
or purchase any put option with respect to, pledge, borrow or otherwise dispose
of any Relevant Security (as defined below), and (b) will not establish or
increase any "put equivalent position" or liquidate or decrease any "call
equivalent position" with respect to any Relevant Security (in each case within
the meaning of Section 16 of the Exchange Act, as amended, and the rules and
regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration. As used herein
"Relevant Security" means the Stock, any other equity security of the Company or
any of its subsidiaries and any security convertible into, or exercisable or
exchangeable for, any Stock or other such equity security.
The undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to
ANNEX IV - 1
cause the record holder to cause the relevant transfer agent to decline to
transfer, and to note stop transfer restrictions on the stock register and other
records relating to, such Relevant Securities. The undersigned hereby further
agrees that, without the prior written consent of JPMorgan, during the Lock-up
Period the undersigned will not exercise any rights the undersigned may have to
require registration with the Securities and Exchange Commission of any proposed
offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first above written.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
Very truly yours,
By:
-----------------------------
Print Name:
---------------------
ANNEX IV - 2
