EXHIBIT 4.10
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AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO THE RIGHTS AGREEMENT (this "THIRD
AMENDMENT"), dated as of March 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") and
Amendment No. 2 to the Rights Agreement on February 13, 2002 (the "SECOND
AMENDMENT"; the Original Rights Agreement, as amended by the First Amendment and
the Second 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 (a) thereof and replacing it with the following:
(a) "ACQUIRING PERSON" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as such
term is hereinafter defined) of 15% or more of the shares of Common
Stock then outstanding, but shall not include an Exempt Person (as such
term is hereinafter defined); provided, however, that (i) if the Board
of Directors of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person" no longer qualifies as an
Exempt Person inadvertently or became the Beneficial Owner of a number
of shares of Common Stock such that the Person would otherwise qualify
as an "Acquiring Person" inadvertently (including, without limitation,
because (A) such Person was unaware that it beneficially owned a
percentage of Common Stock that would otherwise cause such Person to be
an "Acquiring Person" or (B) such Person was aware of the extent of its
Beneficial Ownership of Common Stock but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement) and
without any intention of changing or influencing control of the Company,
then such Person shall not be deemed to be or to have become
an "Acquiring Person" for any purposes of this Agreement unless and
until such Person shall have failed to divest itself, as soon as
practicable (as determined, in good faith, by the Board of Directors of
the Company), of Beneficial Ownership of a sufficient number of shares
of Common Stock so that such Person would no longer otherwise qualify as
an "Acquiring Person"; (ii) if, as of the date hereof, any Person is, or
prior to the earlier of notice or the first public announcement of the
adoption of this Agreement, any Person becomes the Beneficial Owner of
15% or more of the shares of Common Stock outstanding, such Person shall
not be deemed to be or to become an "Acquiring Person" unless and until
such time as such Person shall, after the earlier of notice of or the
first public announcement of the adoption of this Agreement, become the
Beneficial Owner of 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, such Person is not then the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding; (iii) no Person shall become an "Acquiring Person" as the
result of an acquisition of shares of Common Stock or Series A Preferred
Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares of Common
Stock beneficially owned by such Person to 15% or more of the shares of
Common Stock then outstanding, provided, however, that if a Person shall
become the Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding by reason of such share acquisitions by the Company and
shall thereafter 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), then such Person shall be an
"Acquiring Person" unless upon becoming the Beneficial Owner of such
additional shares of Common Stock such Person does not beneficially own
15% or more of the shares of Common Stock then outstanding; and (iv) no
Person shall become an "Acquiring Person" as a result of the acquisition
by such Person of shares of Common Stock and/or Series A Preferred Stock
pursuant to a tender offer or exchange offer (the "OFFER") that meets
all of the following conditions: (A) the Offer is for all of the
outstanding shares of Common Stock and Series A Preferred Stock not
already beneficially owned by such Person, (B) the same per share price
and consideration is offered for all shares, and is paid upon
consummation of the Offer for all tendered or exchanged shares, of
Common Stock and Series A Preferred Stock (on an as converted basis) in
the Offer, (C) immediately upon consummation of the Offer and without
taking into account any subsequent offering period under Section 14d-11
of the General Rules and Regulations under the Exchange Act, such Person
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beneficially owns shares of the Company's capital stock representing 75%
or more of the voting power of the then outstanding shares of the
Company's capital stock entitled to vote generally in the election of
directors, and (D) on or prior to the date that the Offer is commenced
within the meaning of Rule 14d-2 of the General Rules and Regulations
under the Exchange Act, such Person makes an irrevocable written
commitment to the Company to consummate a transaction or series of
transactions promptly upon completion of the Offer, pursuant to which
all shares of Common Stock and Series A Preferred Stock not beneficially
owned by such Person at the time of consummation of the Offer will be
acquired at the same price, and for the same consideration, per share as
paid in the Offer for shares of Common Stock and Series A Preferred
Stock (on an as converted basis). For all purposes of this Agreement,
any calculation of the number of shares of Common Stock outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in accordance
with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), as in effect on the date hereof.
2. This Third 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 Third 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 Third 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 Third
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 Third 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 Third Amendment, the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Third 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 Third 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: VP - General Counsel
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President