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EXHIBIT 1.1
$150,000,000
QUANTA SERVICES, INC.
4% CONVERTIBLE SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
July 19, 2000
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July 19, 2000
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
Raymond James & Associates, Inc.
SunTrust Equitable Securities Corporation
Wachovia Securities, Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Quanta Services, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters named in Schedule I
hereto (the "UNDERWRITERS") $150,000,000 aggregate principal amount of its 4%
Convertible Subordinated Notes due 2007 (the "FIRM SECURITIES") to be issued
pursuant to the provisions of a Subordinated Indenture to be dated as of July
25, 2000 (the "INDENTURE") between the Company and Chase Bank of Texas,
National Association (the "TRUSTEE").
The Company also proposes to issue and sell to the several
Underwriters not more than an additional $22,500,000 aggregate principal amount
of its 4% Convertible Subordinated Notes due 2007 (the "ADDITIONAL
Securities"), if and to the extent that you shall have determined to exercise
the right to purchase such Additional Securities granted to the Underwriters in
Section 2 hereof. The Firm Securities and the Additional Securities are
hereinafter collectively referred to as the "SECURITIES". The shares of common
stock, par value $0.00001 per share (the "COMMON STOCK"), of the Company
issuable upon conversion of the Securities are hereinafter referred to as the
"SHARES".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION"), pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), a registration statement, including a base
prospectus, relating to the Securities and certain other debt and equity
securities of the Company. The registration statement as amended at the time it
became effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act, is hereinafter referred to as the "REGISTRATION STATEMENT";
such base prospectus, as supplemented by a prospectus supplement relating to
the Securities, in the form first used to confirm sales of Securities is
hereinafter referred to as the "PROSPECTUS" (including, in the case of all
references to the Registration Statement and the Prospectus, documents
incorporated therein by reference). If the Company has filed an abbreviated
registration statement to register additional Securities or Common Stock
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall be deemed to include such Rule 462 Registration Statement. The terms
"SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this Agreement shall include
all documents subsequently filed by the Company with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), that are
deemed to be incorporated by reference in the Prospectus.
1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
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(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if
applicable, will not contain any 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, (iii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with
the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this paragraph do not
apply (A) to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by you expressly for use therein
or (B) that part of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), of the Trustee.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated
or organized, is validly existing in good standing under the laws of
the jurisdiction of its organization, has the corporate or comparable
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of
the issued shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except for liens disclosed in the Prospectus.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act, and, when it has been duly authorized, executed and
delivered by the Company and the Trustee, it will be a valid and
binding agreement of the Company, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of
equity.
(g) The Company has duly authorized and reserved for issuance
a number of shares of Common Stock equal to the number of Shares to be
issued initially upon the conversion of the Securities, and when
issued following conversion of the Securities by the holders thereof
in accordance with the Indenture, the Shares will be validly issued,
fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights other than the
rights of UtiliCorp United Inc. ("UTILICORP") as described in the
Prospectus.
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(h) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and general principles of equity.
(i) The authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Prospectus.
(j) The shares of Common Stock outstanding prior to the
issuance of the Securities to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable.
(k) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as have
been obtained under the Securities Act and the Trust Indenture Act or
as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Securities.
(l) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(n) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder.
(o) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus will not be, required
to register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended (the "1940 ACT").
(p) The Company is not a "holding company" or, to its
knowledge, a "subsidiary of a holding company" within the meaning of
such terms as defined in the Public Utility Holding Company Act of
1935, as amended (the "1935 ACT").
(q) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
in all material respects the financial position and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity
with generally
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accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein.
(r) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(s) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(t) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Securities
registered pursuant to the Registration Statement, except for rights
that have been satisfied or waived.
(u) The Company has complied with all provisions of Section
517.075, Florida Statutes relating to doing business with the
Government of Cuba or with any person or affiliate located in Cuba.
(v) Neither the Company nor any of its subsidiaries is in
violation of its charter documents or bylaws; neither the Company nor
any of its subsidiaries is in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, except where such default or
noncompliance would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(w) The statements set forth in the Prospectus under the
caption "Description of Debt Securities" and "Description of Notes"
insofar as they purport to constitute a summary of the terms of the
Securities, are accurate and complete.
(x) Arthur Andersen LLP, who have certified the financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
(y) The Company owns or possesses adequate licenses or other
rights to use all trademarks, service marks, trade names, copyrights,
and know-how necessary to conduct the business now or proposed to be
conducted by the Company as described in the Prospectus, and, except
as disclosed in the Prospectus, the Company has not received any
notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with
respect to trademarks, service marks, trade names, copyrights, or
know-how which, individually or in the aggregate, is reasonably likely
to result in any material adverse effect upon the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, except as disclosed in the
Prospectus and to the knowledge of the Company, the Company does not,
in the conduct of its business as now or proposed to be conducted as
described in the Prospectus, infringe or conflict with any right of
any third party, known to the Company, where such infringement or
conflict is reasonably likely to result in any material adverse effect
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upon the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole.
(z) The Company has obtained any permits, consents and
authorizations required to be obtained by it under laws or regulations
relating to its business (collectively, "LAWS"), and any such permits,
consents and authorizations remain in full force and effect, except as
to any of the foregoing the absence of which (individually or in the
aggregate) will not have a material adverse effect on the financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole; and the Company is in
compliance with the Laws in all material respects, and there is no
pending or, to the Company's knowledge, threatened, action or
proceeding against the Company for violation of any Law, other than
any such actions or proceedings which, individually or in the
aggregate, if adversely determined, is not reasonably likely to have a
material adverse effect on the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole.
(aa) The Company (i) has timely and properly prepared and
filed all federal, state and local income and franchise tax returns
required to be filed through the date hereof and has paid all taxes
due thereon, except to the extent that such taxes are being contested
in good faith and adequate reserves therefor have been recorded, and
has furnished all information returns it is required to furnish
pursuant to the Internal Revenue Code of 1986, as amended, (ii) the
charges, accruals and reserves on the consolidated books of the
Company in respect of any income, franchise or corporation tax
liability for any years not fully determined are reasonable and have
been recorded on a basis in conformance with generally accepted
accounting principles, and (iii) does not have any tax deficiency or
claims outstanding, assessed or to its knowledge, proposed against it
which is reasonably likely to result in any material adverse effect
upon the financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole.
(bb) The Company maintains insurance of the types and in the
amounts which the Company reasonably believes are adequate for its
business and consistent with insurance coverage maintained by similar
companies in similar businesses, including but not limited to,
workers' compensation insurance, insurance covering real and personal
property owned or leased by the Company against theft, damage,
destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Firm Securities set forth in
Schedule I opposite such Underwriter's name at 97.25% of the principal amount
of such Securities plus accrued interest, if any, from July 19, 2000 to the
date of payment and delivery (the "PURCHASE PRICE").
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Securities, and the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to
$22,500,000 aggregate principal amount of Additional Securities at the Purchase
Price. If you elect to exercise such option, you shall so notify the Company in
writing not later than 30 days after the date of this Agreement, which notice
shall specify the aggregate principal amount of Additional Securities to be
purchased by the Underwriters and the date on which such Additional Securities
are to be purchased. Such date may be the same as the Closing Date (as defined
below) but not earlier than the Closing Date nor later than ten business days
after the date of such notice. Additional Securities may be purchased as
provided in Section 3 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Securities. If any Additional
Securities are to be purchased, each Underwriter agrees, severally and not
jointly, to purchase the principal amount of Additional Securities (subject to
such adjustments to eliminate portions of less than $1,000 principal amount as
you may determine) that bears the same proportion to the total principal amount
of Additional Securities to be purchased as the principal amount of Firm
Securities set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total principal amount of Firm Securities.
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The Company hereby agrees that, without the prior written
consent of Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") on behalf of
the Underwriters, it will not, during the period ending 90 days after the date
of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock, whether
any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold hereunder
or the shares of Common Stock issuable upon conversion of such Securities, (B)
any options granted or the issuance by the Company of shares of Common Stock
upon the exercise of options granted pursuant to the Company's 1997 Stock
Option Plan or its Employee Stock Purchase Plan, (C) shares of Common Stock
issued upon conversion of the Company's Limited Vote Common Stock or Series A
Preferred Stock, (D) the issuance by the Company of shares of Common Stock upon
the exercise of preemptive rights held by UtiliCorp, (E) the issuance by the
Company of shares of Common Stock in connection with the acquisition of
businesses, products or technologies, provided that the holder of such shares
agrees to be bound in writing by the terms of the Company's customary lock-up
agreement that cannot be waived during the 90 day period from the date of this
Agreement and (F) any private placement or transfer of convertible notes or
shares of Common Stock or options or warrants to purchase shares of Common
Stock to an investor who agrees to be bound by the terms of the foregoing
lock-up.
3. Terms of Public Offering. The Company has been advised by you that
the Underwriters propose to make a public offering of their respective portions
of the Securities as soon after this Agreement has become effective as in your
judgment is advisable. The Company has been further advised by you that the
Securities are to be offered to the public initially at 100% of their principal
amount plus accrued interest, if any, from July 19, 2000 to the date of payment
and delivery, and to certain dealers selected by you at a price that represents
a concession not in excess of 1.65% of their principal amount.
4. Payment and Delivery. Payment for the Firm Securities shall be made
to the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Securities for the respective accounts of the
several Underwriters in book entry form through the facilities of The
Depository Trust Company, New York, New York ("DTC") at 10:00 a.m., New York
City time, on July 25, 2000, or at such other time on the same or such other
date, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Securities shall be made to the
Company in Federal or other funds immediately available in New York City
against delivery of such Additional Securities for the respective accounts of
the several Underwriters in book entry form through the facilities of DTC at
10:00 a.m., New York City time, on the date specified in the notice described
in Section 2 or at such other time on the same or on such other date, as shall
be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "OPTION CLOSING DATE".
5. Conditions to the Underwriters' Obligations. The obligation of the
Company to sell the Securities to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Securities on the Closing Date
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
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(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms
and in the manner contemplated in the Prospectus; and
(iii) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the
Securities Act and no proceedings for that purpose shall have
been instituted or shall be pending or, to your knowledge or
the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters.
(b) The Underwriters shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P., outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus;
(ii) the Company has authorized and outstanding
capital stock as set forth under the caption "Capitalization"
in the Prospectus; the authorized capital stock of the
Company conforms to the description thereof contained in the
Prospectus; the certificates for the Shares, assuming they
are in the form filed with the Commission, will be in the
form required by Delaware law;
(iii) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and, assuming it has
been duly authorized, executed and delivered by the Trustee,
is a valid and binding agreement of the Company, enforceable
in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity;
(iv) the Securities to be sold by the Company
pursuant to this Agreement have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity;
and no statutory or, to the knowledge of such counsel,
contractual preemptive rights of stockholders exist with
respect to any of the Securities or the Shares or the issue
or sale thereof, except that UtiliCorp has preemptive rights
respecting the issue of the Shares;
(v) the Shares have been duly authorized and
reserved for issuance upon conversion of the Securities and,
when issued and delivered in accordance with the terms of the
Indenture and the Securities, will be validly issued, fully
paid and non-assessable, and the issuance of such shares
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will not be subject to any statutory or, to the knowledge of
such counsel, contractual preemptive rights of stockholders,
other than those presently held by UtiliCorp;
(vi) except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no
outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants or
rights of any character obligating the Company to issue any
shares of its capital stock or any securities convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of such stock; and except as
described in the Prospectus, to the knowledge of such
counsel, no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which
has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Securities or the right
to have any shares of Common Stock or other securities of the
Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement, to
require registration under the Securities Act of any shares
of Common Stock or other securities of the Company;
(vii) the Registration Statement has become
effective under the Securities Act and, to the knowledge of
such counsel, no stop order proceedings with respect thereto
have been instituted or are pending or threatened under the
Securities Act;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company;
(ix) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by the Company of its obligations under this Agreement,
except such as have been obtained under the Securities Act
and the Trust Indenture Act or as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(x) the statements (A) in the Prospectus under the
captions "Description of Debt Securities," "Description of
Notes," "Description of Capital Stock," "Certain United
States Federal Income Tax Considerations" and "Underwriters"
and (B) in the Registration Statement in Item 15, in each
case insofar as such statements constitute a summary of
documents referred to therein or matters of law, fairly
summarize in all material respects the information called for
with respect to such documents and matters;
(xi) such counsel does not know of any statutes,
regulations, contracts or documents required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so
filed or described as required, and such contracts and
documents as are summarized in the Registration Statement or
the Prospectus are fairly summarized in all material
respects;
(xii) such counsel knows of no material legal or
governmental proceedings pending or threatened against the
Company or any of its subsidiaries except as set forth in the
Prospectus;
(xiii) the Company is not, and after giving effect
to the offering and sale of the Securities and the
application of the proceeds thereof as described in the
Prospectus will not be required to register as an "investment
company" as such term is defined in the 1940 Act;
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(xiv) the Company is not required to register as a
"holding company" under the 1935 Act;
(xv) such counsel is of the opinion that (A) each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and
the Prospectus (except for financial statements and schedules
as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects
with the Exchange Act, and the applicable rules and
regulations of the Commission thereunder and (B) the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical
data included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
In addition to the matters set forth above, the opinion of
Akin, Gump, Strauss, Hauer & Feld, L.L.P. shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them
to believe that (A) except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief, the Registration Statement and the prospectus included therein at the
time the Registration Statement became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (B)
except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief, the
Prospectus contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
With respect to clause (B) of Section 5(c)(xv) above and
clauses A and B of the paragraph immediately following Section 5(c)(xv), Akin,
Gump, Strauss, Hauer & Feld, L.L.P. may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and Prospectus and any amendments or supplements thereto and documents
incorporated by reference and review and discussion of the contents thereof,
but is without independent check or verification, except as specified.
(d) The Underwriters shall have received on the Closing Date
an opinion of Brad Eastman, Vice President and General Counsel of the Company,
dated the Closing Date, to the effect that:
(i) the Company is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) each subsidiary of the Company has been duly
incorporated or organized, is validly existing in good
standing under the laws of the jurisdiction of its
organization, has the corporate or comparable power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iii) the outstanding shares of the Company's Common
Stock and the Company's Limited Vote Common Stock have been
duly authorized and validly issued and are fully paid and
non-assessable;
(iv) except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no
outstanding securities of the Company convertible or
exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and
there are no outstanding or authorized options, warrants or
rights of any character obligating the
- 9 -
<PAGE> 11
Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of such stock;
and except as described in the Prospectus, to the knowledge
of such counsel, no holder of any securities of the Company
or any other person has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause
the Company to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any of the Securities or the
right to have any shares of Common Stock or other securities
of the Company included in the Registration Statement or the
right, as a result of the filing of the Registration
Statement, to require registration under the Securities Act
of any shares of Common Stock or other securities of the
Company;
(v) all of the outstanding shares of capital stock
or other equity interests of each subsidiary of the Company
have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances,
equities or claims except for liens described in the
Prospectus;
(vi) the execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not contravene, to the best of such
counsel's knowledge, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary;
and
(vii) such counsel knows of no material legal or
governmental proceedings pending or threatened against the
Company or any of its subsidiaries except as set forth in the
Prospectus;
(e) The Underwriters shall have received on the Closing Date
an opinion of Vinson & Elkins L.L.P., counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(c)(iv) and 5(c)(x)
(but only as to the statements in the Prospectus under "Description of Capital
Stock," "Description of Debt Securities," "Description of Notes" and
"Underwriters") and clause (B) of Section 5(c)(xv) above and clauses A and B of
the paragraph immediately following Section 5(c)(xv).
With respect to clause (B) of Section 5(c)(xv) above and
clauses A and B of the paragraph immediately following Section 5(c)(xv), Vinson
& Elkins L.L.P. may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (other than the documents
incorporated by reference) and upon review and discussion of the contents
thereof (including documents incorporated by reference), but is without
independent check or verification, except as specified.
(f) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Arthur Andersen LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
(g) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and the executive officers and certain
directors of the Company and UtiliCorp relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, delivered
to you on or before the date hereof, shall be in full force and effect on the
Closing Date.
The several obligations of the Underwriters to purchase
Additional Securities hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request with
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<PAGE> 12
respect to the good standing of the Company, the due authorization and issuance
of the Additional Securities and other matters related to the issuance of the
Additional Securities.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To furnish to you, without charge, seven (7) signed
copies of the Registration Statement (including exhibits thereto and documents
incorporated by reference) and, during the period mentioned in paragraph (c)
below, as many copies of the Prospectus, any documents incorporated by
reference, and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply
with law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering the
twelve-month period ending September 30, 2001 that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) To apply the net proceeds from the sale of the Securities
as set forth in the Prospectus.
(g) The Company will not voluntarily claim and will actively
resist any attempts to claim the benefit of any usury laws against holders of
the Securities.
(h) To apply prior to the Closing Date for listing, subject
only to notice of issuance, of the Shares for listing on the New York Stock
Exchange.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees
to pay or cause to be paid all expenses incident to the performance of the
Company's obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Securities
under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with the
offer and
- 11 -
<PAGE> 13
sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale under
state securities laws as provided in Section 6(d) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Securities by the National
Association of Securities Dealers, Inc. (the "NASD"), and any counsel fees
incurred on behalf of or disbursements by Morgan Stanley in its capacity of
"qualified independent underwriter" within the meaning of Rule 2720 of the
NASD's Conduct Rules, (v) the cost of printing certificates representing the
Securities, (vi) the costs and charges of the Trustee and any transfer agent,
registrar or depositary, (vii) the costs and expenses of the Company relating
to investor presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, and (viii) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in
this Section 7, Section 8 entitled "Indemnity and Contribution", and the last
paragraph of Section 10 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by you expressly for use therein. The
Company also agrees to indemnify and hold harmless Morgan Stanley and each
person, if any, who controls Morgan Stanley within the meaning of either
Section 15 of the Securities Act, or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments incurred
as a result of Morgan Stanley's participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the NASD's Conduct Rules in
connection with the offering of the Securities, except for any losses, claims,
damages, liabilities, and judgments resulting from Morgan Stanley's, or such
controlling person's, willful misconduct.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company, the
officers of the Company who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any 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
reference to information relating to such Underwriter furnished to the Company
in writing by you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
- 12 -
<PAGE> 14
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act and (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of any
Underwriters, such firm shall be designated in writing by Morgan Stanley. In
the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to the last sentence of Section
8(a) hereof in respect of such action or proceeding, then in addition to such
separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for Morgan Stanley in its capacity as a
"qualified independent underwriter" and all persons, if any, who control Morgan
Stanley within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (d)(i) above but also the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received by the
- 13 -
<PAGE> 15
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the Securities. The
relative fault of the Company on the one hand and 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
alleged omission to state a material fact relates to information supplied by
the Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute pursuant to
this Section 8 are several in proportion to the respective number of Securities
they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (a)(iv) above, such event,
singly or together with any other such event, makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the full principal amount of Securities that it has or they have
agreed to purchase hereunder on such date, and the principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of
Firm Securities set forth opposite their respective names in Schedule I bears
to the aggregate principal amount of Firm Securities set forth opposite the
names of all such non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the principal amount of Securities which such
defaulting
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<PAGE> 16
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
principal amount of Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse
to purchase Firm Securities and the aggregate principal amount of Firm
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Firm Securities to be purchased, and
arrangements satisfactory to you and the Company for the purchase of such
principal amount of Firm Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Additional Securities and the
aggregate principal amount of Additional Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Additional Securities to be purchased, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase
Additional Securities or (ii) purchase not less than the principal amount of
Additional Securities that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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<PAGE> 17
Very truly yours,
QUANTA SERVICES, INC.
By: /s/ John R. Colson
-----------------------
Name: John R. Colson
Title: Chief Executive Officer
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
Raymond James & Associates, Inc.
SunTrust Equitable Securities Corporation
Wachovia Securities, Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: /s/ John Shepherd
---------------------------------
Name: John Shepherd
Title: Vice President
- 16 -
<PAGE> 18
SCHEDULE I
<TABLE>
<CAPTION>
AGGREGATE PRINCIPAL
AMOUNT OF FIRM
SECURITIES
UNDERWRITER TO BE PURCHASED
----------- -------------------
<S> <C>
Morgan Stanley & Co. Incorporated.......................................... $ 67,875,000
Banc of America Securities LLC............................................. 30,375,000
Bear, Stearns & Co. Inc.................................................... 22,875,000
Raymond James & Associates, Inc............................................ 7,875,000
SunTrust Equitable Securities Corporation.................................. 7,875,000
Wachovia Securities, Inc. ................................................. 7,875,000
Sanders Morris Harris Inc. ................................................ 5,250,000
-------------------
Total........................................... $ 150,000,000
===================
</TABLE>
<PAGE> 19
EXHIBIT A
LOCK-UP LETTER
________, 2000
Morgan Stanley & Co. Incorporated
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated
("MORGAN STANLEY") proposes to enter into one or more Underwriting Agreements
(the "UNDERWRITING AGREEMENTS") with Quanta Services, Inc., a Delaware
corporation (the "COMPANY"), relating to a public offering (the "PUBLIC
OFFERING") by the several Underwriters, including Morgan Stanley (the
"UNDERWRITERS"), of the common stock, par value $0.00001 per share (the "COMMON
Stock"), and convertible debt securities of the Company.
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Morgan
Stanley on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 90 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Public Offering or (b) a transfer of shares of Common Stock to a family member
or trust; provided that in the case of any transfer or distribution pursuant to
clause (b), (i) each transferee shall execute and deliver to Morgan Stanley a
duplicate form of this lock-up letter and (ii) no filing by any party
(transferor or transferee) under Section 16(a) of the Securities Exchange Act
of 1934, as amended, shall be required or shall be made voluntarily in
connection with such transfer (other than a filing on Form 5 made after the
expiration of the 90-day period referred to above). In addition, the
undersigned agrees that, without the prior written consent of Morgan Stanley on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the undersigned's shares of Common Stock
except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further
<PAGE> 20
understands that this Lock-Up Agreement is irrevocable and shall be binding
upon the undersigned's heirs, legal representatives, successors and assigns.
Notwithstanding the foregoing, the terms of this letter shall expire if the
proposed Public Offering is terminated by the Company and Morgan Stanley.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to one or more Underwriting Agreements, the terms of which are subject
to negotiation between the Company and the Underwriters.
Very truly yours,
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(Name)
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(Address)
