EXHIBIT 4.9
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO THE RIGHTS AGREEMENT (this "Second
Amendment"), dated as of February 13, 2002, by and between Quanta Services,
Inc., a Delaware corporation (the "Company"), and American Stock Transfer &
Trust Company, as rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a
Rights Agreement, dated as of March 8, 2000 (the "Original Rights Agreement");
and
WHEREAS, pursuant to Section 27 of the Original Rights
Agreement, the Company and the Rights Agent have executed and entered into
Amendment No. 1 to the Rights Agreement on December 1, 2001 (the "First
Amendment"; the Original Rights Agreement, as amended by the First Amendment,
the "Rights Agreement"); and
WHEREAS, the Company may from time to time supplement or amend
the Rights Agreement in accordance with the provisions of Section 27 thereof;
and
WHEREAS, the Special Committee of the Board of Directors,
acting under the authority granted to such Special Committee in accordance with
the Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws of the Company, has determined that it is in the best interest of the
Company and its shareholders to amend the Rights Agreement pursuant to Section
27 thereof as set forth below.
NOW, THEREFORE, the Rights Agreement is hereby amended as
follows:
1. Section 1 of the Rights Agreement is amended by deleting
subsection (k) thereof and replacing it with the following:
(k) "Exempt Person" shall mean (i) the Company or any
Subsidiary (as such term is hereinafter defined) of the Company,
in each case including, without limitation, in its fiduciary
capacity, or any employee benefit plan of the Company or of any
Subsidiary of the Company, or any entity or trustee holding Common
Stock for or pursuant to the terms of any such plan or for the
purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the
Company, and (ii) the corporation known as of the date hereof as
UtiliCorp United Inc. ("UtiliCorp") or any Affiliate or Associate
of UtiliCorp, unless and until (1) UtiliCorp or such Affiliate or
Associate shall be deemed to be the Beneficial Owner of more than
39.0% of the total number of shares of Common Stock then
outstanding assuming conversion of all outstanding shares of
Series A Preferred Stock (provided, however, if UtiliCorp or such
Affiliate or Associate shall be deemed to be the Beneficial Owner
of more than 39.0% of such number of shares of Common Stock prior
to the earlier of notice to UtiliCorp of or first public
announcement of Amendment No. 2 to this Agreement,
UtiliCorp or such Affiliate or Associate will continue to qualify
as an Exempt Person unless and until UtiliCorp or such Affiliate
or Associate shall, at any time after such earlier time, become
the Beneficial Owner of any additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or made by
the Company on the outstanding Common Stock or Series A Preferred
Stock or pursuant to a split or subdivision of the outstanding
Common Stock or Series A Preferred Stock), unless, upon becoming
the Beneficial Owner of such additional shares of Common Stock,
UtiliCorp or such Affiliate or Associate is not then the
Beneficial Owner of 39.0% of the total number of shares of Common
Stock outstanding assuming conversion of all outstanding shares of
Series A Preferred Stock), (2) UtiliCorp or such Affiliate or
Associate makes a public announcement of the intent to commence a
tender or exchange offer which would result in UtiliCorp, or any
Affiliate or Associate of UtiliCorp, becoming the Beneficial Owner
of more than 49.9% of the total number of shares of Common Stock
outstanding (on an as converted basis) assuming full conversion of
all securities and full exercise of all outstanding rights,
options and warrants to acquire the Common Stock, or (3) there is
a UtiliCorp Change of Control.
2. This Second Amendment shall be deemed effective as of
the date hereof as if executed by both parties hereto on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
3. This Second Amendment shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such state applicable
to contracts to be made and performed entirely within such state.
4. This Second Amendment may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument.
5. If any term, provision, covenant or restriction of this
Second Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal, or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Second Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
6. Terms not defined herein shall, unless the context
otherwise requires, have the meanings assigned to such terms in the Rights
Agreement.
7. In all respects not inconsistent with the terms and
provisions of this Second Amendment, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Second
Amendment, the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and conditions of the
Rights Agreement.
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IN WITNESS WHEREOF, this Second Amendment has been duly
executed by the Company and the Rights Agent as of the day and year first
written above.
QUANTA SERVICES, INC.
By: /s/ Dana A. Gordon
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Name: Dana A. Gordon
Title: Vice President - General Counsel
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President