EXHIBIT 3.3
RESTATED CERTIFICATE OF INCORPORATION
OF
QUANTA SERVICES, INC.
Quanta Services, Inc, (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"DGCL"), does hereby certify as follows:
1. The present name of the Corporation is Quanta Services, Inc. The
Corporation was originally incorporated under the name "Fabal Construction,
Inc." and the original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on August 19, 1997. The
Certificate of Incorporation of the Corporation was amended and restated on
December 22, 1997, January 28, 1998 and February 10, 1998.
2. This Restated Certificate of Incorporation was duly adopted in
accordance with the provisions of Section 245 of the General Corporation Law of
the State of Delaware.
3. The Certificate of Incorporation of the Corporation is hereby
restated and integrated in its entirety as follows:
FIRST. The name of the corporation is Quanta Services, Inc.
SECOND. The Corporation's registered office in the State of Delaware is
2711 Centerville Road, Suite 400, in the City of Wilmington, County of New
Castle, 19808. The name of its registered agent at such address is the
Corporation Service Corporation.
THIRD. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH. The aggregate number of shares of capital stock that the
Corporation will have authority to issue is Three Hundred Thirteen Million,
Three Hundred Forty Five Thousand, Three Hundred Thirty Three (313,345,333),
Three Hundred Million (300,000,000) of which will be shares of Common Stock,
having a par value of $0.00001 per share (hereinafter called "Common Stock"),
Three Million, Three Hundred Forty Five Thousand, Three Hundred Thirty Three
(3,345,333) of which will be shares of Limited Vote Common Stock, having a par
value of $0.00001 per share (hereinafter called "Limited Vote Common Stock") and
Ten Million (10,000,000) of which will be shares of Preferred Stock having a par
value of $0.00001 per share (hereinafter called "Preferred Stock").
(a) Preferred Stock may be issued in one or more series as may be
determined from time to time by the Board of Directors. All shares of any one
series of Preferred Stock will be identical except as to the dates of issue and
the dates from which dividends on shares of the series issued on different dates
will cumulate, if cumulative. Authority is hereby expressly granted to the Board
of Directors to authorize the issuance of one or more series of Preferred Stock,
and to fix by resolution or resolutions providing for the issue of each such
series the voting powers, designations, preferences, and relative,
participating, optional, redemption,
conversion, exchange or other special rights, qualifications, limitations or
restrictions of such series, and the number of shares in each series, to the
full extent now or hereafter permitted by law.
Pursuant to the authority created by this Article FOURTH upon the Board
of Directors of the Company, on October 24, 2002, the Company created a series
of 1,000,000 shares of Preferred Stock of the Company designated as Series D
Junior Participating Preferred Stock by filing a Certificate of Designations, of
the Series D Junior Participating Preferred Stock (the "Series D Certificate of
Designations") with the Secretary of State and the voting powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the Company's Series D
Junior Participating Preferred Stock are set forth in Appendix A hereto and are
incorporated herein by reference.
(b) Subject to the preferred rights of the holders of shares of any
class or series of Preferred Stock, the holders of Common Stock shall be
entitled to receive out of the funds of the Corporation legally available
therefor, such dividends (payable in cash, stock or otherwise) as the Board of
Directors may from time to time determine, payable to stockholders of record on
such dates, not exceeding 60 days preceding the dividend payment dates, as shall
be fixed for such purpose by the Board of Directors in advance of payment of
each particular dividend. All dividends on Common Stock shall be paid pari passu
with dividends on Limited Vote Common Stock.
In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, after the distribution or
payment to the holders of shares of any class or series of Preferred Stock as
provided by the Board of Directors with respect to any such class or series of
Preferred Stock, the remaining assets of the Corporation available for
distribution to stockholders shall be distributed among and paid to the holders
of Common Stock and Limited Vote Common Stock ratably in proportion to the
number of shares of Common Stock and Limited Vote Common Stock held by them
respectively.
Except as otherwise required by law, each holder of shares of
Common Stock shall be entitled to one vote for each share of Common Stock
standing in such holder's name of the books of the Corporation.
(c) Subject to the preferred rights of the holders of shares of any
class or series of Preferred Stock, the holders of the Limited Vote Common Stock
shall be entitled to receive, as and when declared by the Board of Directors,
such dividends (payable in cash, stock or otherwise) as the Board of Directors
may from time to time determine, payable to stockholders of record on such
dates, not exceeding 60 days preceding the dividend payment dates, as shall be
fixed for such purpose by the Board of Directors in advance of payment of each
particular dividend. All dividends on Limited Vote Common Stock shall be paid
pari passu with dividends on Common Stock.
Holders of Limited Vote Common Stock voting as a class shall
be entitled to elect one member of the Board of Directors, but shall not
otherwise be entitled to vote in the election of directors of the Corporation.
Only holders of Limited Vote Common Stock shall have the right to remove the
member elected by them from the Board of Directors. Subject to the
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foregoing, and except as otherwise required by law, each holder of shares of
Limited Vote Common Stock shall be entitled to one-tenth of one vote for each
share of Limited Vote Common Stock standing in such holder's name of the books
of the Corporation.
Each share of the Limited Vote Common Stock will automatically
convert into Common Stock on a share-for-share basis in the event of a
disposition of such share of Limited Vote Common Stock by the holder; provided
that the following shall not be considered a disposition that causes conversion
into Common Stock: (i) a distribution by a holder to its partners or beneficial
owners or (ii) a transfer by a holder to a related party of such holder or to
another holder of Limited Vote Common Stock or a related party thereto (whether
a party is a "related party" shall be determined in accordance with Sections
267, 707, 318, and/or 4946 of the Internal Revenue Code of 1986, as amended).
(d) The Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable laws.
FIFTH. The number of directors of the Corporation shall be as specified
in, or determined in the manner provided in, the Bylaws, but shall be at least
one and not more than nineteen. Election of directors need not be by written
ballot. A director of the Corporation may be removed only for cause and only
upon the affirmative vote of the holders of a majority of the outstanding stock
of the Corporation entitled to vote at an election of directors, subject to
further restrictions on removal, not inconsistent with this Section, as may be
contained in the bylaws.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation shall have the
right, voting separately by class or series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Directors' resolutions applicable thereto, and such directors so
elected shall not be subject to the provisions of this Section unless expressly
provided by such terms.
SIXTH. No stockholder of the Corporation will, solely by reason of
holding shares of any class, have any preemptive or preferential right to
purchase or subscribe for any shares of the Corporation, now or hereafter to be
authorized, or any notes, debentures, bonds or other securities convertible into
or carrying warrants, rights or options to purchase shares of any class, now or
hereafter to be authorized, whether or not the issuance of any such shares or
such notes, debentures, bonds or other securities would adversely affect the
dividend, voting or any other rights of such stockholder. The Board of Directors
may authorize the issuance of, and the Corporation may issue, shares of any
class of the Corporation, or any notes, debentures, bonds or other securities
convertible into or carrying warrants, rights or options to purchase any such
shares, without offering any shares of any class to the existing holders of any
class of stock of the Corporation.
SEVENTH. At all meetings of stockholders, a quorum will be present if
the holders of a majority of the shares entitled to vote at the meeting are
represented at the meeting in person or by proxy. From and after the first date
as of which any class of the Corporation's equity
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securities is traded on a national securities exchange, (i) any action required
or permitted to be taken by the stockholders of the Corporation must be effected
at an annual or special meeting of stockholders of the Corporation and may not
be effected by any consent in writing by such stockholders and (ii) special
meetings of the stockholders of the Corporation may be called only by the
Chairman of the Board of Directors and shall be called within ten (10) days
after receipt of the written request of the Board of Directors, pursuant to a
resolution approved by a majority of the whole Board of Directors.
EIGHTH. Stockholders of the Corporation will not have the right of
cumulative voting for the election of directors or for any other purpose.
NINTH. The Board of Directors is expressly authorized to alter, amend
or repeal the Bylaws of the Corporation or to adopt new Bylaws.
TENTH. (a) The Corporation will, to the fullest extent permitted by the
Delaware General Corporation Law, as the same exists or may hereafter be
amended, indemnify any and all persons it has power to indemnify under such law
from and against any and all of the expenses, liabilities or other matters
referred to in or covered by such law. Such indemnification may be provided
pursuant to any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his director or officer capacity
and as to action in another capacity while holding such office, will continue as
to a person who has ceased to be a director, officer, employee or agent, and
will inure to the benefit of the heirs, executors and administrators of such a
person.
(b) If a claim under the preceding paragraph (a) is not paid in full by
the Corporation within 30 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant will be entitled to be paid also the expense of
prosecuting such claim. It will be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct that make it permissible under the laws of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense will be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the laws of the State of Delaware nor an actual
determination by the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard of conduct.
ELEVENTH. To the fullest extent permitted by the laws of the State of
Delaware as the same exist or may hereafter be amended, a director of the
Corporation will not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any repeal or
modification of this Article will not increase the personal liability of any
director of the Corporation for any act or occurrence taking place before such
repeal or modification, or
4
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification. The provisions of this
Article shall not be deemed to limit or preclude indemnification of a director
by the Corporation for any liability of a director that has not been eliminated
by the provisions of this Article.
4. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there is
no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be executed this 6th day of May, 2003.
QUANTA SERVICES, INC.
By: /s/ DANA A. GORDON
----------------------
Name: Dana A. Gordon
Title: Vice President
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APPENDIX A
CERTIFICATE OF DESIGNATIONS
OF
SERIES D JUNIOR PARTICIPATING PREFERRED STOCK
OF
QUANTA SERVICES, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
----------
Quanta Services, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), hereby certifies that the following resolution was adopted by
the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on October 15, 2002:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Amended and
Restated Certificate of Incorporation, as amended, the Board of Directors hereby
creates a series of Preferred Stock, par value $0.00001 per share, of the
Corporation (the "Preferred Stock"), and hereby states the number of shares, and
fixes the relative rights, preferences, and limitations thereof as follows:
Series D Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series D Junior Participating Preferred Stock" (the "Series D
Preferred Stock") and the number of shares constituting the Series D Preferred
Stock shall be 1,000,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series D Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible into Series D Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of holders of any shares of any
series of Preferred stock (or any similar stock) ranking prior and
superior to the Series D Preferred Stock with respect to dividends, the
holders of shares of Series D Preferred Stock, in preference to the
holders of Common Stock, par value $0.00001 per share (the "Common
Stock"), of the Corporation, and of any other junior stock, shall be
entitled to received, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends
payable in cash on the first day of March, June, September and December
in each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share
of Series D Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater of (a) $10 or (b) subject to the
provision for adjustment hereinafter set forth, 1000 times the
aggregate per share amount of all cash dividends, and 1000 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series D Preferred
Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series D Preferred Stock were
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount 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.
(B) The Corporation shall declare a dividend or distribution
on the Series D Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10 per share on the Series D Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series D Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series D Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series D Preferred
Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series D Preferred
Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set
forth, each share of Series D Preferred Stock shall entitle the holder
thereof to 1000 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series D Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such number 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.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series D Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series D Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent
they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series D Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series D Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series D Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series D Preferred Stock, except
dividends paid ratably on the Series D Preferred Stock and all
such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series D Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series D
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series D Preferred Stock, or any
shares of stock ranking on a parity with the Series D
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series D Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series D Preferred Stock, unless, prior thereto, the holders of
shares of Series D Preferred Stock shall have received $1000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, provided that the holders of
shares of Series D Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1000 times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series D Preferred Stock, except distributions made ratably on the
Series D Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare to pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series D Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount 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.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the 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 D Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 1000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in such
case the amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series D Preferred Stock shall be adjusted by multiplying
such amount 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.
Section 8. No Redemption. The shares of Series D Preferred Stock shall
not be redeemable.
Section 9. Rank. The Series D Preferred Stock shall rank, with respect
to the payment of dividends and the distribution of assets, junior to all series
of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The 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 D Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series D Preferred Stock, voting
together as a single class.