Exhibit 3.9
CERTIFICATE OF DESIGNATION
OF
SERIES C JUNIOR CONVERTIBLE PREFERRED STOCK
OF
QUANTA SERVICES, INC.
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
QUANTA SERVICES, INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
in accordance with the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of
Directors in accordance with the provisions of the Restated Certificate of
Incorporation of the said Corporation, a committee of the Board of Directors of
the Corporation, pursuant to the authority conferred upon the committee by the
said Board of Directors, adopted the following resolution creating a series of
1,000,000 shares of Preferred Stock designated as "Series C Junior Convertible
Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board
of Directors of this Corporation in accordance with the provisions of the
Restated Certificate of Incorporation and the authority conferred upon this
committee of the Board of Directors by the Board of Directors, a series of
Preferred Stock, par value $0.00001 per share, of the Corporation be and hereby
is created, and that the designation and number of shares thereof and the voting
and other powers, preferences and relative, participating, optional or other
rights of the shares of such series and the qualifications, limitations and
restrictions thereof are as follows:
SERIES C JUNIOR CONVERTIBLE PREFERRED STOCK
1. Designation and Amount. There shall be a series of
Preferred Stock that shall be designated as "Series C Junior Convertible
Preferred Stock," and the number of shares constituting such series shall be
1,000,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors; provided, however, that no decrease shall reduce the
number of shares of Series C Junior Convertible Preferred Stock to less than the
number of shares then issued and outstanding plus the number of shares issuable
upon exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
2. Dividends. The holders of shares of Series C Junior
Convertible Preferred Stock shall not be entitled to receive any dividends.
3. Voting Rights. The holders of shares of Series C Junior
Convertible Preferred Stock shall not be entitled to vote, except as otherwise
required by applicable law. In each such matter where applicable law affords the
holders of Series C Junior Convertible Preferred Stock the right to vote, each
share of Series C Junior Convertible Preferred Stock shall entitle the holder
thereof to one vote.
4. Reacquired Shares. Any shares of Series C Junior
Convertible Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired promptly after the acquisition
thereof. All such shares shall upon their retirement become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on issuance set forth
herein.
5. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation, dissolution or winding up of the
Corporation, voluntary or otherwise, no distribution shall be made to the
holders of shares of stock ranking junior upon liquidation, dissolution or
winding up to the Series C Junior Convertible Preferred Stock unless, prior
thereto, the holders of shares of Series C Junior Convertible Preferred Stock
shall have received an amount per share (the "Series C Liquidation Preference")
equal to $10.00.
(b) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series C Liquidation
Preference and the liquidation preferences of all other classes and series of
stock of the Corporation, if any, that rank on a parity with the Series C Junior
Convertible Preferred Stock in respect thereof, then the assets available for
such distribution shall be distributed ratably to the holders of the Series C
Junior Convertible Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.
(c) Neither the merger or consolidation of the Corporation
into or with another entity nor the merger or consolidation of any other entity
into or with the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 5.
6. No Redemption. Shares of Series C Junior Convertible
Preferred Stock shall not be subject to redemption by the Corporation.
7. Conversion.
(a) Each whole share of Series C Junior Convertible Preferred
Stock is convertible, at any time from and after the thirtieth day following the
conclusion of the next annual meeting of stockholders of the Corporation
following the initial issuance of any shares of Series C Junior Convertible
Preferred Stock (provided, however, such date shall be extended to the first
anniversary of such thirtieth day if prior thereto any person has become an
"Acquiring Person" (as defined in the Rights Agreement, dated as of March 8,
2000, between the Corporation and American Stock Transfer & Trust Company, as
rights agent, as such may be amended from time to time)), at the option of the
holder thereof, into one thousand (as such may
be adjusted from time to time pursuant to Section 7(b) hereof, the "Conversion
Ratio") shares of Common Stock, par value $0.00001 per share, of the Corporation
(the "Common Stock").
(b) If the Corporation shall at any time or from time to time
(i) declare and pay any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Conversion Ratio in effect immediately prior to such event shall be adjusted
by multiplying such Conversion Ratio by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event. Any adjustments made pursuant to
this Section 7(b) shall become effective on the date of the respective dividend,
subdivision or combination. Such adjustments shall be made successively.
(c) Before any holder of Series C Junior Convertible Preferred
Stock shall be entitled to convert the same into Common Stock, such holder shall
surrender the certificate or certificates for such Series C Junior Convertible
Preferred Stock to the Corporation at the Corporation's principal office, or at
the office of any transfer agent appointed by the Corporation, which certificate
or certificates, if the Corporation shall so request, shall be duly endorsed to
the Corporation or in blank, and shall give written notice to the Corporation
that the holder elects to convert such shares of Series C Junior Convertible
Preferred Stock into Common Stock and shall state in such notice the name or
names in which he wishes the certificate or certificates for Common Stock to be
issued.
(d) The Corporation will, as soon as practicable after such
surrender of certificates for Series C Junior Convertible Preferred Stock
accompanied by the written notice above prescribed, issue and deliver or cause
to be issued and delivered, to the holder or to his nominee or nominees,
certificates for the number of shares of Common Stock to which the holder shall
be entitled. Subject to the following provisions of this Section, such
conversion shall be deemed to have been made as of the date of such surrender of
the Series C Junior Convertible Preferred Stock to be converted, and the person
or persons entitled to receive the Common Stock issuable upon conversion of such
Series C Junior Convertible Preferred Stock shall be treated for all purposes as
the record holder or holders of such Common Stock on such date.
(e) As soon as practicable after the surrender of a
certificate representing shares of Series C Junior Convertible Preferred Stock
that is converted in part, the Corporation shall issue or cause to be issued for
the holder a new certificate representing shares of Series C Junior Convertible
Preferred Stock equal in number to the unconverted portion of the shares of
Series C Junior Convertible Preferred Stock represented by the certificate so
surrendered.
(f) The Corporation shall reserve and keep available, out of
its authorized and unissued Common Stock, solely for the purpose of effecting
the conversion of the Series C Junior Convertible Preferred Stock, such number
of shares of Common Stock as shall from time to time be sufficient to effect the
conversion of all shares of Series C Junior Convertible Preferred Stock from
time to time outstanding.
(g) The Corporation will pay any and all issue and other taxes
(other than taxes based on income) that may be payable in respect of any
issuance or delivery of shares of Common Stock on conversion of the Series C
Junior Convertible Preferred Stock pursuant hereto. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involving the issuance and delivery of Common Stock in a name other
than that in which the Series C Junior Convertible Preferred Stock so converted
was registered, and no such issuance or delivery shall be made unless and until
the person requesting such issuance has paid to the Corporation the amount of
any such tax, or has established, to the satisfaction of the Corporation, that
such tax has been paid.
8. Consolidation, Merger. In case the Corporation shall enter
into any consolidation or merger transaction in which the outstanding shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series C Junior
Convertible Preferred Stock shall at the same time be converted into the right
to receive an amount per share equal to $10.00, and, in connection with any such
transaction where appraisal rights are available to the holders of the Series C
Junior Convertible Preferred Stock under Section 262 of the General Corporation
Law of the State of Delaware, each such share shall be deemed to have a fair
value of $10.00 per share for purposes thereof.
9. Ranking. The Series C Junior Convertible Preferred Stock
shall rank on a parity with the Series B Junior Participating Preferred Stock,
par value $0.00001 per share, of the Corporation as to the distribution of
assets upon liquidation, dissolution or winding up. The Series C Junior
Convertible Preferred Stock shall rank junior to all other series of Preferred
Stock as to the distribution of assets upon liquidation, dissolution or winding
up, unless the terms of any such series shall provide otherwise, and shall rank
senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series C Junior
Convertible Preferred Stock are outstanding, the Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series C Junior Convertible Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds of the outstanding
shares of Series C Junior Convertible Preferred Stock, voting separately as a
class.
11. Fractional Shares. Series C Junior Convertible Preferred
Stock may be issued in fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights, if
any, participate in distributions and to have the benefit of all other rights of
holders of Series C Junior Convertible Preferred Stock.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate this 1st day of December, 2001.
QUANTA SERVICES, INC.
By: /s/ Dana A. Gordon
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Name: Dana A. Gordon
Title: Vice President - General Counsel