Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Amendment to General Statement of Beneficial 6 26K
Ownership
2: EX-1 Underwriting Agreement 2 10K
3: EX-2 Plan of Acquisition, Reorganization, Arrangement, 39 104K
Liquidation or Succession
4: EX-3 Articles of Incorporation/Organization or By-Laws 3 15K
5: EX-4 Instrument Defining the Rights of Security Holders 5 19K
EX-2 — Plan of Acquisition, Reorganization, Arrangement, Liquidation or Succession
Exhibit Table of Contents
[UTILICORP UNITED LETTERHEAD]
February 22, 2002
Quanta Services, Inc.
1360 Post Oak Boulevard, Suite 2100
Houston, Texas 77056
Attention: Corporate Secretary
Re: STOCKHOLDER NOTICE TO SUBMIT DIRECTOR NOMINEES
Dear Ms. Gordon:
UtiliCorp United Inc. ("UtiliCorp") is hereby submitting this notice
on the date hereof in order to comply with the requirements set forth in
Article I, Section 2.12(a)(2) of the Bylaws (the "Bylaw Requirements") of
Quanta Services, Inc. (the "Corporation") with respect to the nominations of
candidates for election as directors of the Corporation. UtiliCorp's address
is 20 West Ninth Street, Kansas City, Missouri 64105. UtiliCorp is both the
beneficial and record owner of 3,444,961 shares of Series A Convertible
Preferred Stock, par value $.00001 per share, of the Corporation ("Series A
Convertible Preferred Stock") and 12,018,374 shares of common stock, par
value $.00001 per share, of the Corporation ("Common Stock"), which
constitute approximately 38% of the Corporation's outstanding Common Stock
(on an as converted basis) based on the Corporation's Form 10-Q filed with
the Securities and Exchange Commission (the "SEC") for the quarter ended
September 30, 2001. Accordingly, UtiliCorp represents that it is a holder of
record of stock of the Corporation entitled to vote at all meetings of
stockholders. For further information on UtiliCorp's beneficial ownership of
the Corporation's securities and/or other relationships between UtiliCorp and
the Corporation, reference should be made to Annex A attached to this notice.
UtiliCorp hereby represents that it intends to appear at the 2002
annual meeting of the Corporation's stockholders (the "Annual Meeting") in
person or by proxy to nominate the individuals specified in this notice for
election as directors of the Corporation.
UtiliCorp is seeking at the Annual Meeting to elect the following
persons as members of the Board of Directors of the Corporation, and in that
regard hereby nominates the following persons (each a "Nominee") as nominees
for election as directors of the Corporation at the Annual Meeting:
Robert K. Green
Keith G. Stamm
Edward K. Mills
R. Paul Perkins
Bruce A. Reed
Richard C. Kreul
Terrence P. Dunn
Robert E. Marsh
William H. Starbuck, Ph.D.
Currently, UtiliCorp, as the owner of all of the issued and
outstanding shares of Series A Convertible Preferred Stock , has the right to
elect three of the Corporation's ten directors. To the extent that such right
continues through the Annual Meeting, UtiliCorp hereby designates Messrs.
Green, Mills and Stamm as the Nominees to be elected by the owner of the
Series A Convertible Preferred Stock. To the extent that the owner of the
Series A Convertible Preferred Stock is entitled to elect two directors at
the Annual Meeting, UtiliCorp hereby designates Messrs. Green and Stamm as
the Nominees to be elected by the owner of the Series A Convertible Preferred
Stock. To the extent that the owner of the Series A Convertible Preferred
Stock is entitled to elect one director at the Annual Meeting, UtiliCorp
hereby designates Mr. Green as the Nominee to be elected by the owner of the
Series A Convertible Preferred Stock. To the extent that one or more of these
three Nominees is not or ceases to be one of the Nominees to be elected by
the owner of the Series A Convertible Preferred Stock as provided above, he
should be considered a Nominee to stand for election as a director to be
elected by the owners of the Series A Convertible Preferred Stock and Common
Stock voting together as a single class as provided in the Corporation's
Certificate of Incorporation.
UtiliCorp intends to deliver a proxy statement and forms of proxy to
holders of at least the percentage of the Corporation's outstanding capital
stock required to elect the Nominees.
As required by the Bylaw Requirements, UtiliCorp hereby advises you
that certain information relating to each of the Nominees is set forth in
Annexes B through J of this notice, respectively. Except as set forth herein
or in Annex A or in such other Annexes, to the best of UtiliCorp's knowledge
(i) no Nominee owns any securities of the Corporation or any parent or
subsidiary of the Corporation, directly or indirectly, beneficially or of
record, nor has purchased nor sold any securities of the Corporation within
the past two years, and none of his associates beneficially owns, directly or
indirectly, any securities of the Corporation, (ii) no Nominee, his
associates or any member of his immediate family have any arrangement or
understanding with any person (a) with respect to any future employment by
the Corporation or its affiliates or (b) with respect to future transactions
to which the Corporation or any of its affiliates will or may be a party, nor
any material interest, direct or indirect, in any transaction, or series of
similar transactions, that has occurred since January 1, 2000 or any
currently proposed transaction, or series of similar transactions, to which
the Corporation or any of its subsidiaries was or is a party and in which the
amount involved exceeds $60,000, (iii) no Nominee is, nor was within the past
year, a party to any contract, arrangement or understanding with any person
with respect to any securities of the Corporation, including, but not limited
to, joint ventures, loan or option arrangements, puts or calls, guarantees
against loss or guarantees of profit, division of losses or profits or the
giving or withholding of proxies, (iv) no Nominee nor any of his associates
has any arrangement or understanding with any person pursuant to which he was
or is to be selected as a director, nominee or officer of the Corporation and
(v) there is no other information with respect to any Nominee that is
required to be disclosed in solicitations of proxies for election of
directors or is otherwise required by the rules and regulations of the SEC
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). Matters disclosed in any part of this notice, including the
Annexes, should be deemed disclosed for all purposes of this notice.
The following is a description of all arrangements or understandings
between UtiliCorp and each Nominee and any other person pursuant to which the
nominations set forth above are being made:
o Each Nominee has agreed in writing with UtiliCorp to be named
as a nominee (a copy of which is attached to the applicable
Annex).
o UtiliCorp has agreed in writing to indemnify each Nominee who
is not currently an officer and/or director of UtiliCorp or
the Corporation (a copy of which is attached to the applicable
Annex) in connection with the solicitation of proxies.
UtiliCorp believes that this notice sets forth all information
relating to the Nominees that is required to be disclosed in solicitations of
proxies for election of directors pursuant to Regulation 14A promulgated by
the SEC under the Exchange Act. UtiliCorp will promptly provide any other
information reasonably requested by the Corporation pursuant to the Bylaw
Requirements.
Very truly yours,
/s/ Keith G. Stamm
Keith G. Stamm
President and Chief
Operating Officer,
Global Networks Group
ANNEX A
TRANSACTIONS BY UTILICORP UNITED INC. IN THE SECURITIES OF QUANTA SERVICES, INC.
The following is a summary of all transactions by UtiliCorp United
Inc. ("UtiliCorp") in the securities of Quanta Services, Inc. (the
"Corporation") over the last two years.
[Enlarge/Download Table]
AMOUNT OF
DATE OF TRANSACTION AMOUNT OF COMMON DATE OF COMMON STOCK DATE OF AMOUNT OF COMMON
(NOTE 1) STOCK PURCHASED TRANSACTION (NOTE 1) PURCHASED TRANSACTION (NOTE 1) STOCK PURCHASED
------------------- ---------------- -------------------- ------------ -------------------- ----------------
01/07/2000 186,174 04/17/2000 100,000 09/24/2001 131,300
04/14/2000 4,037,727 (Note 2) 04/18/2000 1,050,000 09/25/2001 297,900
04/14/2000 1,345,909 (Note 2) 04/18/2000 35,000 09/25/2001 485,600
04/14/2000 250,000 04/18/2000 200,000 09/27/2001 142,200
04/14/2000 345,000 04/19/2000 49,999 09/28/2001 457,600
04/17/2000 187,500 04/19/2000 125,000 10/01/2001 426,700
04/17/2000 200,000 04/19/2000 125,000 10/02/2001 350,000
04/17/2000 100,000 04/20/2000 200,000 10/03/2001 304,000
04/17/2000 34,909 04/20/2000 37,500 10/04/2001 104,900
04/17/2000 48,621 04/21/2000 100,000 11/16/2001 13,000
04/17/2000 300,000 04/24/2000 208,995
04/17/2000 100,000 07/14/2000 124,013
NOTES:
(1) THE DATE AN OFFER WAS ACCEPTED IS BEING USED AS THE "DATE OF TRANSACTION"
(2) SHARES UNDERLYING CONVERTIBLE NOTES OF THE CORPORATION PURCHASED BY
UTILICORP
TRANSACTIONS BETWEEN UTILICORP AND THE CORPORATION
Set forth below is a brief description of the transactions between
UtiliCorp and the Corporation.
In September 1999, the Corporation issued 1,860,000 shares of Series
A convertible preferred stock, par value $0.00001, of the Corporation (the
"Series A Convertible Preferred Stock") to UtiliCorp for an initial
investment of $186.0 million, before transaction costs in accordance with the
securities purchase agreement between the Corporation and UtiliCorp (the
"Securities Purchase Agreement"), and in September 2000, UtiliCorp converted
7,924,805 shares of common stock, par value $0.00001, of the Corporation (the
"Common Stock") into an additional 1,584,961 shares of Series A Convertible
Preferred Stock. In certain circumstances, UtiliCorp also had the right to
purchase additional securities from the Corporation to maintain the
percentage ownership of the Corporation represented by the Series A
Convertible Preferred Stock. This right terminated in October 2000. During
the fiscal year ended December 31, 2000, UtiliCorp purchased 519,182 shares
of Common Stock pursuant to this right. In addition to this right, UtiliCorp
is also entitled to one demand registration with respect to the Common Stock
issued upon conversion of the Series A Convertible Preferred Stock and
unlimited "piggyback" registrations in accordance with the investor's right
agreement between the Corporation and UtiliCorp (the "Investor's Right
Agreement").
Pursuant to the Securities Purchase Agreement, UtiliCorp has the
right to purchase up to 49.9% of the stock of the Corporation on a fully
diluted, as converted basis. Accordingly,
UtiliCorp, through close consultation and coordination with the management
and the Board of the Corporation, directly negotiated with and purchased from
the Corporation's significant stockholders 4,696,504 shares of stock of the
Corporation in 1999, and 3,338,529 shares in 2000. From open market UtiliCorp
also purchased 2,984,400 shares of stock of the Corporation in 1999, 250,000
shares in 2000 and 2,713,200 shares in 2001.
Concurrently with the investment by UtiliCorp in September 1999, the
Corporation agreed that UtiliCorp would use the Corporation as a preferred
provider of outsourced transmission and distribution infrastructure
construction and maintenance as well as natural gas distribution construction
and maintenance in all areas serviced by UtiliCorp, provided that the
Corporation provide such services at a competitive cost. This strategic
alliance agreement has a term of six years (the "Strategic Alliance
Agreement"). UtiliCorp paid approximately $15.3 million to the Corporation
for projects for UtiliCorp or its affiliates in 2000, and approximately $38.5
million in 2001. Also, concurrently with the investment by UtiliCorp in
September 1999, UtiliCorp and the Corporation executed an irrevocable
stockholder's voting agreement, among UtiliCorp, the Corporation and various
stockholders of the Corporation, obligating the parties to vote all shares
owned by them, or over which they have voting control, to approve specific
proposals pursuant to such agreement (the "Stockholder's Voting Agreement").
The Securities Purchase Agreement, the Investor's Right Agreement, the
Strategic Alliance Agreement and the Stockholder's Voting Agreement were
previously filed with the Securities and Exchange Commission on October 4,
1999 as exhibits to Schedule 13D.
In addition to the Strategic Alliance Agreement, the Corporation
entered into a management services agreement with UtiliCorp. Under the
management services agreement, UtiliCorp provided advice and services to the
Corporation. In consideration of the advice and services rendered by
UtiliCorp, the Corporation agreed to pay UtiliCorp a fee of $2,325,000,
quarterly in arrears during the six year term of the agreement. During the
year 2000, the Corporation also reimbursed UtiliCorp $137,000 for the
salaries and expenses of certain consultants. In December 2000, the
Corporation agreed to conclude its obligations under the management services
agreement with UtiliCorp in exchange for a one-time payment to UtiliCorp of
approximately $28.6 million.
As the sole holder of Series A Convertible Preferred Stock,
UtiliCorp is currently entitled to elect three directors to the Board of
Directors of the Corporation.
On April 14, 2000, UtiliCorp signed a contract to purchase and
subsequently paid for all of the $49.4 million principal amount of the
Corporation's 6 7/8% convertible subordinated notes held by certain
affiliates of Enron Corporation. UtiliCorp converted the convertible
subordinated notes into approximately 5.4 million shares of Common Stock on
June 13, 2000.
UtiliCorp filed on November 28, 2001, a demand for arbitration with
the American Arbitration Association seeking declaratory judgment, injunctive
relief and damages from the Corporation in connection with the Corporation 's
breach of the Securities Purchase Agreement by its amendment to the
Stockholders Rights Plan dated March 8, 2000 (the "Stockholders Rights
Plan"). UtiliCorp filed on November 28, 2001, a complaint in the Court of
Chancery of the State of Delaware against the Corporation and the
non-UtiliCorp directors of the Corporation
seeking declaratory and injunctive relief for their failure to properly
notify all of the Corporation's directors of the time and purpose of the
November 15 and November 18, 2001 meeting of the Board of Directors, at which
the non-UtiliCorp directors purportedly adopted and ratified the amendments
to the Stockholders Rights Plan, in violation of the bylaws of the
Corporation and the Delaware General Corporation Law.
ANNEX B
ROBERT K. GREEN
Name: Robert K. Green (the "NOMINEE")
Age: 40
Business Address: UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Residence Address: 2318 West 59th Street
Shawnee Mission, Kansas 66208
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Robert K. Green has been a member of the Quanta Services, Inc.
Board of Directors since September 21, 1999. Effective January
1, 2002, Mr. Green is President and Chief Executive Officer of
UtiliCorp United Inc. ("UtiliCorp"). Prior to that, he served
as President and Chief Operating Officer of UtiliCorp from
February 1996, and as Chairman of Aquila, Inc., the company's
energy marketing and trading unit, from December 1999. Mr.
Green also previously served as Chairman of United Energy
Limited and United Networks Limited. UtiliCorp manages and
owns 34 percent of United Energy, an Australian company that
provides electric and natural gas service to more than a
million customers in Melbourne. UnitedNetworks, New Zealand's
largest electricity and natural gas lines company, is managed
and 55 percent owned by UtiliCorp. He is Chairman of the
Initiative for a competitive Inner City in Kansas City and a
member of the organizations' national board of directors, and
also serves on the board of directors of United Missouri Bank
and eScout. Mr Green holds a J.D. degree.
Set forth below are the number of shares of capital stock of Quanta
Services, Inc. (the "Corporation") beneficially owned by the Nominee within
the meaning of Securities and Exchange Commission (the "SEC") Rule 13d-1:
The Nominee beneficially owns phantom stock units with respect
to 26,768 shares of common stock of the Corporation and
options to purchase 30,000 shares of common stock of the
Corporation. Further information about the Nominee is included
in the Schedule 13D filed with the SEC on October 4, 1999 and
the amendments attached thereto.
The following is a summary of all transactions by Mr. Green in the
securities of the Corporation over the last two years.
[Download Table]
AMOUNT OF COMMON STOCK PURCHASED
DATE OF TRANSACTION (P), GRANTED (G) OR SOLD (S)
------------------- --------------------------------
5/24/00 7,500 (G) (Note 1)
5/30/00 10,000 (P)
5/25/01 7,500 (G) (Note 1)
9/17/01 25,000 (S)
9/17/01 26,768 (P) (Note 2)
Notes
(1) Shares underlying options to purchase shares of common stock
of the Corporation
(2) Phantom Stock units purchased with respect to 26,768 shares
of common stock of the Corporation
Annex A sets forth a brief description of certain transactions
between UtiliCorp and the Corporation, as well as the securities of the
Corporation owned by UtiliCorp. The Nominee disclaims beneficial ownership of
any securities of the Corporation owned by UtiliCorp, and this Annex shall
not be deemed an admission that the Nominee is the beneficial owner of such
securities for any purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the
proxy statement and other materials prepared by or on behalf of UtiliCorp
United Inc. or its affiliates in connection with its solicitation of proxies
from stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Robert K. Green
---------------------------------
Robert K. Green
Dated February 18, 2002
ANNEX C
KEITH G. STAMM
Name: Keith G. Stamm (the "NOMINEE")
Age: 41
Business Address: UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Residence Address: 13109 Beverly Street
Overland Park, Kansas 66209
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Keith G. Stamm has been appointed by UtiliCorp as a director
of Quanta Services, Inc. to replace James G. Miller (who
retired in November 2001) as one of three directors on
Quanta's Board of Directors exclusively elected by the owner
of the Series A Convertible Preferred Stock; however, Quanta
has not recognized such appointment. Mr. Stamm was appointed
President and Chief Operating Officer of UtiliCorp's Global
Networks Group in November 2001. Global Networks Group manages
all the company's electric, natural gas and telecommunications
network operations worldwide and includes 3,000 U.S. employees
as well as network operations in Canada, Australia, New
Zealand and the United Kingdom.
Mr. Stamm also is chairman of United Energy and
UnitedNetworks. UtiliCorp manages and owns 34 percent of
United Energy, an Australian company that provides electric
and natural gas service to more than a million customers in
Melbourne. UnitedNetworks, New Zealand's largest electricity
and natural gas lines company, is managed and 55 percent owned
by UtiliCorp.
Prior to his appointment as President and COO of UtiliCorp's
Global Networks Group, since January 2000 Mr. Stamm was Chief
Executive Officer of Aquila, Inc., a wholly owned UtiliCorp
subsidiary that is one of the largest wholesalers of
electricity and natural gas in North America.
Aquila also provides wholesale energy services in the U.K. and
has a presence in Scandinavia and Germany. Before joining
Aquila, he was Chief Executive Officer of United Energy since
August 1997 and held various positions with UtiliCorp since
1983.
Mr. Stamm is certified as a Professional Engineer and has a
bachelor's degree in Mechanical Engineering from the
University of Missouri and an M.B.A. from Rockhurst College in
Kansas City. He has 19 years of experience in several facets
of the energy industry, including strategic planning, risk
management, utility operations and energy marketing.
The Nominee does not, directly or indirectly, own any shares of
Quanta Services, Inc. (the "Corporation"). Annex A sets forth a brief
description of certain transactions between UtiliCorp and the Corporation, as
well as the securities of the Corporation owned by UtiliCorp. The Nominee
disclaims beneficial ownership of any securities of the Corporation owned by
UtiliCorp, and this Annex shall not be deemed an admission that the Nominee
is the beneficial owner of such securities for any purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Keith G. Stamm
--------------------------------
Keith G. Stamm
Dated: February 18, 2002
ANNEX D
EDWARD K. MILLS
Name: Edward K. Mills (the "NOMINEE")
Age: 42
Business Address: UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Residence Address: 8415 Meadow Lane
Leawood, Kansas 66206
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Edward K. Mills has served as Senior Vice President of
UtiliCorp since May 2000 and the President and Chief Operating
Officer of Aquila, Inc. since November 1998. In November 2001,
Mr. Mills became President and Chief Operating Officer of
UtiliCorp's Merchant Energy Group. Previously, from 1993 to
1998, Mr. Mills served as Aquila's Director of Risk Management
and Trading.
Prior to joining UtiliCorp, Mr. Mills held executive and
management positions at Fina Oil and Chemical Company, Texas
Commerce Bank and Springer Holding Company.
Mr. Mills holds a bachelor's degree in English from the
University of Texas and an M.B.A. (Finance) from Rice
University.
The Nominee does not, directly or indirectly, own any shares of Quanta
Services, Inc. (the "Corporation"). Annex A sets forth a brief description of
certain transactions between UtiliCorp and the Corporation, as well as the
securities of the Corporation owned by UtiliCorp. The Nominee disclaims
beneficial ownership of any securities of the Corporation owned by UtiliCorp,
and this Annex shall not be deemed an admission that the Nominee is the
beneficial owner of such securities for any purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Edward K. Mills
--------------------------------
Edward K. Mills
Dated: February 18, 2002
ANNEX E
R. PAUL PERKINS
Name: R. Paul Perkins (the "NOMINEE")
Age: 58 (59 on Feb. 23, 2002)
Business Address: UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Residence Address: 8012 Lee Blvd.
Leawood, Kansas 66206
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Paul Perkins has served as Senior Vice President, Corporate
Development of UtiliCorp since March 2000. Previously, Mr.
Perkins served as Senior Vice President, International from
June 1999 to March 2000 and Senior Vice President, Australasia
from 1997 to June 1999. Mr. Perkins joined UtiliCorp in 1994
as Vice President, Corporate Development focused primarily on
international opportunities.
Mr. Perkins is also a current director of United Energy
Limited (since 1995), UnitedNetworks Limited (since 1999), and
AlintaGas Limited (since October 2000). UtiliCorp manages and
owns 34 percent of United Energy, an Australian company that
provides electric and natural gas service to more than a
million customers in Melbourne. UnitedNetworks, New Zealand's
largest electricity and natural gas lines company, is managed
and 55 percent owned by UtiliCorp. UtiliCorp and United Energy
jointly own a 45% cornerstone shareholding in AlintaGas, a gas
distribution utility in Western Australia managed by
UtiliCorp.
Mr. Perkins holds a bachelor's degree in International
Relations from the University of North Carolina.
The Nominee does not, directly or indirectly, own any shares of
Quanta Services, Inc. (the "Corporation"). Annex A sets forth a brief
description of certain transactions between UtiliCorp and the Corporation, as
well as the securities of the Corporation owned by UtiliCorp.
The Nominee disclaims beneficial ownership of any securities of the
Corporation owned by UtiliCorp, and this Annex shall not be deemed an
admission that the Nominee is the beneficial owner of such securities for any
purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ R. Paul Perkins
----------------------------------
R. Paul Perkins
Dated: February 18, 2002
ANNEX F
BRUCE A. REED
Name: Bruce A. Reed (the "NOMINEE")
Age: 48
Business Address: Aquila Inc.
1100 Walnut, Ste. 3300
Kansas City, Missouri 64199
Residence Address: 5628 Suwanee
Fairway, Kansas 66205
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Bruce A. Reed is the Senior Vice President and General Manager
of Aquila Inc.'s Capital Group. Since 1999, he has led the
Capital Group which includes all of Aquila's activities
providing structured finance products for customers. This
group includes Aquila Energy Capital Corporation ("AECC")
which provides asset based mezzanine financing, equity capital
and late stage venture funding for customers. The Capital
Group also includes the Alternative Risk Management group
which is focusing on the convergence of the commodity,
capital, and insurance markets and the development of products
in that growth area. Prior to his current position, Mr. Reed
was Senior Vice President, Strategic Initiatives Group and was
responsible for the development of new products and the
startup of new businesses such as AECC, Weather, Coal,
Alternative Risk and RiskWorks.
Mr. Reed started his career with Aquila's parent, UtiliCorp
United Inc., in 1985, performing merger and acquisition
related activities. He was involved in the start-up of the
UtiliCo Group subsidiary in 1987 and served as an officer of
that company through 1995 sand has been with Aquila since
1996. Prior to UtiliCorp, he began his career in 1978 with
Black & Veatch Engineers-Architects and spent seven years
performing financial consulting services for a wide variety of
clients.
Mr. Reed is a graduate of the University of Wisconsin with
degrees in civil and environmental engineering and in business
administration. Mr. Reed serves on the board of directors of
the YMCA of Greater Kansas City.
The Nominee does not, directly or indirectly, own any shares of
Quanta Services, Inc. (the "Corporation"). Annex A sets forth a brief
description of certain transactions between UtiliCorp and the Corporation, as
well as the securities of the Corporation owned by UtiliCorp. The Nominee
disclaims beneficial ownership of any securities of the Corporation owned by
UtiliCorp, and this Annex shall not be deemed an admission that the Nominee
is the beneficial owner of such securities for any purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Bruce A. Reed
----------------------------------
Bruce A. Reed
Dated: February 18, 2002
ANNEX G
RICHARD C. KREUL
Name: Richard C. Kreul (the "NOMINEE")
Age: 45 (46 on February 27, 2002)
Business Address: UtiliCorp United Inc.
20 West Ninth Street
Kansas City, Missouri 64105
Residence Address: 2205 W. 126th Street
Leawood, Kansas 66209
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Richard C. Kreul has more than 22 of experience in the energy
industry and has served as Vice President, Energy Delivery for
UtiliCorp United Inc.'s U.S. Networks since May 2000.
Previously, from 1997 to 2000, Mr. Kreul was Vice President of
Transmission for UtiliCorp's U.S. Network. Mr. Kreul is
registered professional engineer, a member of various
technical and industry organizations, including the Board of
Directors of the Rocky Mountain Electric League and the
MidAmerica Energy Association. Mr. Kreul holds a bachelor's
degree and master's degree in Mechanical Engineering from the
University of Arkansas.
The Nominee does not, directly or indirectly, own any shares of
Quanta Services, Inc. (the "Corporation"). Annex A sets forth a brief
description of certain transactions between UtiliCorp and the Corporation, as
well as the securities of the Corporation owned by UtiliCorp. The Nominee
disclaims beneficial ownership of any securities of the Corporation owned by
UtiliCorp, and this Annex shall not be deemed an admission that the Nominee
is the beneficial owner of such securities for any purpose.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Richard C. Kreul
--------------------------------
Richard C. Kreul
Dated: February 18, 2002
ANNEX H
TERRENCE P. DUNN
Name: Terrence P. Dunn (the "NOMINEE")
Age: 52
Business Address: Dunn Industries, Inc.
929 Holmes
Kansas City, Missouri 64106
Residence Address: 12008 Ensley Lane
Leawood, Kansas 66209
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Terrence P. Dunn has been a member of the Quanta Board of
Directors since 2001. Mr. Dunn has served as President and
Chief Executive Officer of Dunn Industries, Inc. since 1986.
Mr. Dunn joined J. E. Dunn in 1974 as contracts officer and
was made Vice President and Treasurer in 1978. He was promoted
to Senior Vice President in 1979, Executive Vice President in
1980, and President in 1986. He has been active in all facets
of the business with extensive experience in construction
operations. Mr. Dunn holds an M.B.A. degree. Mr. Dunn serves
as the Chairman of the Board of the Federal Reserve Bank of
Kansas City, the Heart of America United Way and the Rockhurst
University Board of Trustees.
Set forth below are the number of shares of capital stock of Quanta
Services, Inc. (the "Corporation") beneficially owned by the Nominee within
the meaning of Securities and Exchange Commission (the "SEC") Rule 13d-1:
The Nominee beneficially owns 5,000 shares of common stock of
the Corporation and options to purchase 15,000 shares of
common stock of the Corporation. Further information about the
Nominee is included in the Schedule 13D filed with the SEC on
October 4, 1999 and the amendments attached thereto.
The following is a summary of all transactions by Mr. Dunn in the
securities of the Corporation over the last two years.
[Download Table]
AMOUNT OF COMMON STOCK PURCHASED
DATE OF TRANSACTION (P), GRANTED (G) OR SOLD (S)
------------------- -------------------------------
5/24/01 15,000 (G) (Note 1)
8/20/01 1,000 (P)
8/22/01 2,000 (P)
8/31/01 2,000 (P)
Notes
(1) Stock Options to purchase 15,000 shares of common stock of
the Corporation
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Terrence P. Dunn
---------------------------
Terrence P. Dunn
Dated: February 18, 2002
ANNEX I
ROBERT E. MARSH
Name: Robert E. Marsh (the "NOMINEE")
Age: 42
Business Address: Corporate Counsel Group LLP
110 West 9th Street, Ste. 200
Kansas City, Missouri 64105
Residence Address: 6000 Brookside Blvd.
Kansas City, Missouri 66113
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Robert E. Marsh has been a partner with Corporate Counsel
Group LLP, a law firm based in Kansas City, Missouri, since
its formation in January 1998. While Mr. Marsh does not
individually perform a significant amount of services for
UtiliCorp, Corporate Counsel Group LLP was retained during
2001 to provide legal services to UtiliCorp and its
subsidiaries primarily related to environmental advice
provided to Aquila, Inc. UtiliCorp and its subsidiaries expect
to continue using the firm's services in 2002. For eleven
years prior to that date, Mr. Marsh was an associate and
partner in the law firm of Blackwell Sanders Matheny Weary &
Lombardi.
Mr. Marsh holds a bachelor's degree in Mechanical Engineering
from Wichita State University, a JD degree from Northwestern
University and an MBA from Northwestern University. Mr. Marsh
is a Chartered Financial Analyst.
The Nominee does not, directly or indirectly, own any shares of Quanta
Services, Inc.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ Robert Marsh
-------------------------
Robert Marsh
Dated: February 18, 2002
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of February
18, 2002 by and between UtiliCorp United Inc., a Delaware corporation
("UTILICORP"), and Robert E. Marsh (the "INDEMNITEE"), a nominee for election
as a director of Quanta Services, Inc., a Delaware corporation (the
"COMPANY").
WHEREAS, UtiliCorp has asked and the Indemnitee has agreed to be a
nominee for election to the Board of Directors of the Company at the 2002
annual meeting of stockholders of the Company (the "ANNUAL MEETING"); and
WHEREAS, UtiliCorp and/or its affiliates may, in appropriate
circumstances, solicit proxies from the stockholders of the Company in
support of the Indemnitee's election as a director of the Company at the
Annual Meeting;
NOW, THEREFORE, in consideration of the foregoing and with the
understanding on the part of UtiliCorp that the Indemnitee is relying on this
Agreement in agreeing to be a nominee as aforesaid and for other and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
defined terms have the meanings indicated below:
"CLAIM" means any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative, formal or
informal investigative or other), whether instituted by UtiliCorp, any
stockholder of the Company, the Company or any other party (other than by the
Indemnitee), or any inquiry or investigation that the Indemnitee in good
faith believes might lead to the institution of any such action, suit or
proceeding.
"EXPENSES" means all reasonable attorney's fees and all other
reasonable fees, costs, expenses and obligations paid or incurred in
connection with the election of directors at the Annual Meeting or related
matters, including without limitation, investigating, defending or
participating (as a party, witness or otherwise) in (including on appeal), or
preparing to defend or participate in, any Claim relating to any
Indemnifiable Event.
"INDEMNIFIABLE EVENT" means any event or occurrence relating to
or directly or indirectly arising out of, or any action taken or omitted to
be taken in connection with the election of directors at the Annual Meeting
or related matters, but not in the Indemnitee's capacity as a director of the
Company if the Indemnitee is so elected.
"LOSS" means any and all damages, judgments, fines,
penalties, amounts paid or payable in settlement, deficiencies, losses and
Expenses (including all interest, assessments, and other charges paid or
payable in connection with or respect of such Losses).
2. AGREEMENT TO SERVE AS A NOMINEE.
(a) The Indemnitee hereby consents to being named as a
nominee for election as a director of the Company at the Annual Meeting (or
any special meeting of the stockholders of the Company called for that
purpose) in any materials submitted by or on behalf of UtiliCorp to the
Company or filed by or on behalf of UtiliCorp or the Company with the
Securities and Exchange Commission, and further consents to serve as a
director of the Company if elected at the Annual Meeting (or any special
meeting of the stockholders of the Company called for that purpose), upon the
Indemnitee's reasonable satisfaction that the Company maintains customary
indemnification provisions for directors and has in effect customary insurance
coverage for directors. The indemnification provisions of this Agreement will
continue in effect even if the Indemnitee no longer serves as a director
following the Annual Meeting.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) above, the Indemnitee hereby agrees with UtiliCorp that the
Indemnitee does not and will not (unless previously approved by UtiliCorp in
writing) consent to serve as a nominee for election as a director of the
Company, or to otherwise stand for election as or become a director of the
Company, as part of a slate of nominees proposed by any party (including the
Board of Directors of the Company or its Nominating Committee) other than
UtiliCorp.
3. INDEMNIFICATION.
(a) In the event the Indemnitee in his capacity as nominee
for election to the Company's Board of Directors at the Annual Meeting was,
is or becomes a party to or other participant in, or is threatened to be made
a party to or other participant in, a Claim by reason of (or arising or
allegedly arising in any manner out of or relating to in whole or in part) an
Indemnifiable Event or Indemnitee's being a nominee for election to the
Company's Board of Directors at the Annual Meeting, UtiliCorp to the fullest
extent permitted by applicable law shall indemnify and hold harmless the
Indemnitee from and against any and all Losses suffered, incurred or
sustained by the Indemnitee or to which the Indemnitee becomes subject,
resulting from, arising out of or relating to such Claim (it being understood
that except as provided in SECTION 3(c) with respect to Expenses,
reimbursements of any such Losses shall be made as soon as practicable but in
any event no later than 15 days after written request (a "CLAIM NOTICE") is
made to UtiliCorp accompanied by supporting documentation). The Indemnitee
shall give UtiliCorp written notice of any Claim (accompanied by such
reasonable supporting documentation as may be in the Indemnitee's possession)
as soon as practicable after the Indemnitee becomes aware thereof; PROVIDED
that the failure of the Indemnitee to give such notice shall not relieve
UtiliCorp of its indemnification obligations under this Agreement, except to
the extent that such failure materially prejudices the rights of UtiliCorp.
(b) In the case of the commencement of any action against the
Indemnitee in respect of which the Indemnitee may seek indemnification from
UtiliCorp hereunder, UtiliCorp will be entitled to participate therein,
including, without limitation, the negotiation and approval of any settlement
of such action and, to the extent that UtiliCorp may wish to assume the
defense thereof, with counsel reasonably satisfactory to the Indemnitee, and
after notice from UtiliCorp to the Indemnitee of UtiliCorp's election so to
assume the defense thereof, together with UtiliCorp's written acknowledgement
and agreement that it will fully indemnify the Indemnitee
under the terms of this Agreement with regard to such Claim, UtiliCorp will
not be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the defense
thereof other than reasonable costs of investigation and preparation therefor
(including, without limitation, appearing as a witness and reasonable fees
and expenses of legal counsel in connection therewith). If in any action for
which indemnity may be sought hereunder UtiliCorp shall not have timely
assumed the defense thereof with counsel reasonably satisfactory to the
Indemnitee, or the Indemnitee shall have been advised by counsel that it
would constitute a conflict of interest for the same counsel to represent
both the Indemnitee and UtiliCorp in such action, or if the Indemnitee may
have separate or additional defenses with regard to such action, the
Indemnitee shall have the right to employ counsel for the Indemnitee
reasonably satisfactory to UtiliCorp in such action, in which event UtiliCorp
shall reimburse the Indemnitee for all reasonable legal fees and expenses
incurred by the Indemnitee in connection with the defense thereof. UtiliCorp
shall in no event be liable for any settlement of any action effected without
its prior written consent (which consent shall not be unreasonably withheld,
delayed and conditioned). UtiliCorp shall not settle any Claim in any manner
that would impose any expense, penalty, obligation or limitation on the
Indemnitee, or would contain language other than a recitation of any amounts
to be paid in settlement, the fact of the settlement or the underlying claim
relating to the settlement, that could be viewed, in the sole discretion of
the Indemnitee, as an acknowledgement of wrongdoing on the part of the
Indemnitee or as detrimental to the reputation of the Indemnitee, without the
Indemnitee's prior written consent.
(c) The Indemnitee's right to indemnification in this
SECTION 3 shall include the right of the Indemnitee to be advanced by
UtiliCorp any Expenses incurred in connection with any Indemnifiable Event as
such Expenses are incurred by the Indemnitee; PROVIDED, HOWEVER, that all
amounts advanced in respect of such Expenses shall be repaid to UtiliCorp by
the Indemnitee if it shall ultimately be determined in a final judgment
without further right to appeal by a court of appropriate jurisdiction that
the Indemnitee is not entitled to be indemnified for such Expenses because the
Loss arose as a result of the Indemnitee's recklessness or willful misconduct.
4. PARTIAL INDEMNITY. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by UtiliCorp for some or a
portion of any Loss, but not for all of the total amount thereof, UtiliCorp
shall nevertheless indemnify the Indemnitee for the portion thereof to which
the Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
5. NO PRESUMPTIONS. For purposes of this Agreement, the
termination of any claim, action, suit or proceeding, by judgment, order,
settlement (whether with or without court approval), or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that the
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.
6. NONEXCLUSIVITY. The rights of the Indemnitee hereunder shall
be in addition to any other rights the Indemnitee may have under any bylaw,
insurance policy, corporate law or otherwise. To the extent that a change in
applicable law (whether by statute or judicial decision) would permit greater
indemnification by agreement than would be afforded currently under this
Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
7. AMENDMENT, ETC. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
8. SUBROGATION. In the event of any payment under this Agreement,
UtiliCorp shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, and the Indemnitee shall execute all
papers reasonably required and shall take such action that may be reasonably
necessary to secure such rights, including the execution of such documents
reasonably necessary to enable UtiliCorp effectively to bring suit to enforce
such rights.
9. NO DUPLICATION OF PAYMENTS. UtiliCorp shall not be liable
under this Agreement to make any payment in connection with a Claim made
against the Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, bylaw or otherwise) of the
amounts otherwise indemnifiable hereunder; PROVIDED that, if the Indemnitee
for any reason is required to disgorge any payment actually received,
UtiliCorp shall be obligated to pay such amount to the Indemnitee in
accordance with the other terms of this Agreement (I.E., disregarding the
terms of this SECTION 9).
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of laws.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
UTILICORP:
UTILICORP UNITED INC.
By: /s/ Leslie J. Parrette, Jr.
------------------------------
Name: Leslie J. Parrette, Jr.
----------------------------
Title Senior Vice President
---------------------------
NOMINEE:
/s/ Robert E. Marsh
----------------------------------
ANNEX J
WILLIAM H. STARBUCK
Name: William H. Starbuck, Ph.D. (the "NOMINEE")
Age: 67
Business Address: New York University
Stern School of Business
40 West Fourth St. Suite 722
New York, NY 10012-1118
Residence Address: Penthouse G
2 Washington Square Village
New York, NY 10012-1117
Set forth below is a brief description of Nominee's business
experience during the past five years, including the Nominee's principal
occupations and employment during the past five years; the name and principal
business of any corporations or other organizations in which such occupations
and employment were carried on and the Nominee's current principal occupation
or employment.
Since 1985, Mr. Starbuck has been the ITT Professor of
Creative Management in the Stern School of Business at New
York University.
The Nominee does not, directly or indirectly, own any shares of
Quanta Services, Inc.
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for
election as a director of Quanta Services, Inc. (the "Company"), in the proxy
statement and other materials prepared by or on behalf of UtiliCorp United
Inc. or its affiliates in connection with its solicitation of proxies from
stockholders of the Company to be voted at the 2002 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
/s/ William H. Starbuck, Ph.D.
-------------------------------------
William H. Starbuck, Ph.D.
Dated: February 22, 2002
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("AGREEMENT") is made as of February
22, 2002, by and between UtiliCorp United Inc., a Delaware corporation
("UTILICORP"), and William H. Starbuck, Ph.D. (the "INDEMNITEE"), a nominee
for election as a director of Quanta Services, Inc., a Delaware corporation
(the "COMPANY").
WHEREAS, UtiliCorp has asked and the Indemnitee has agreed to be a
nominee for election to the Board of Directors of the Company at the 2002
annual meeting of stockholders of the Company (the "ANNUAL MEETING"); and
WHEREAS, UtiliCorp and/or its affiliates may, in appropriate
circumstances, solicit proxies from the stockholders of the Company in
support of the Indemnitee's election as a director of the Company at the
Annual Meeting;
NOW, THEREFORE, in consideration of the foregoing and with the
understanding on the part of UtiliCorp that the Indemnitee is relying on this
Agreement in agreeing to be a nominee as aforesaid and for other and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
defined terms have the meanings indicated below:
"CLAIM" means any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative, formal or
informal investigative or other), whether instituted by UtiliCorp, any
stockholder of the Company, the Company or any other party (other than by the
Indemnitee), or any inquiry or investigation that the Indemnitee in good
faith believes might lead to the institution of any such action, suit or
proceeding.
"EXPENSES" means all reasonable attorney's fees and all other
reasonable fees, costs, expenses and obligations paid or incurred in
connection with the election of directors at the Annual Meeting or related
matters, including without limitation, investigating, defending or
participating (as a party, witness or otherwise) in (including on appeal), or
preparing to defend or participate in, any Claim relating to any
Indemnifiable Event.
"INDEMNIFIABLE EVENT" means any event or occurrence relating
to or directly or indirectly arising out of, or any action taken or omitted
to be taken in connection with the election of directors at the Annual
Meeting or related matters, but not in the Indemnitee's capacity as a
director of the Company if the Indemnitee is so elected.
"LOSS" means any and all damages, judgments, fines,
penalties, amounts paid or payable in settlement, deficiencies, losses and
Expenses (including all interest, assessments, and other charges paid or
payable in connection with or respect of such Losses).
2. AGREEMENT TO SERVE AS A NOMINEE.
(a) The Indemnitee hereby consents to being named as a
nominee for election as a director of the Company at the Annual Meeting (or
any special meeting of the stockholders of the Company called for that
purpose) in any materials submitted by or on behalf of UtiliCorp to the
Company or filed by or on behalf of UtiliCorp or the Company with the
Securities and Exchange Commission, and further consents to serve as a
director of the Company if elected at the Annual Meeting (or any special
meeting of the stockholders of the Company called for that purpose), upon the
Indemnitee's reasonable satisfaction that the Company maintains customary
indemnification provisions for directors and has in effect customary
insurance coverage for directors. The indemnification provisions of this
Agreement will continue in effect even if the Indemnitee no longer serves as
a director following the Annual Meeting.
(b) Notwithstanding anything to the contrary contained in
paragraph (a) above, the Indemnitee hereby agrees with UtiliCorp that the
Indemnitee does not and will not (unless previously approved by UtiliCorp in
writing) consent to serve as a nominee for election as a director of the
Company, or to otherwise stand for election as or become a director of the
Company, as part of a slate of nominees proposed by any party (including the
Board of Directors of the Company or its Nominating Committee) other than
UtiliCorp.
3. INDEMNIFICATION.
(a) In the event the Indemnitee in his capacity as nominee
for election to the Company's Board of Directors at the Annual Meeting was,
is or becomes a party to or other participant in, or is threatened to be made
a party to or other participant in, a Claim by reason of (or arising or
allegedly arising in any manner out of or relating to in whole or in part) an
Indemnifiable Event or Indemnitee's being a nominee for election to the
Company's Board of Directors at the Annual Meeting, UtiliCorp to the fullest
extent permitted by applicable law shall indemnify and hold harmless the
Indemnitee from and against any and all Losses suffered, incurred or
sustained by the Indemnitee or to which the Indemnitee becomes subject,
resulting from, arising out of or relating to such Claim (it being understood
that except as provided in SECTION 3(c) with respect to Expenses,
reimbursements of any such Losses shall be made as soon as practicable but in
any event no later than 15 days after written request (a "CLAIM NOTICE") is
made to UtiliCorp accompanied by supporting documentation). The Indemnitee
shall give UtiliCorp written notice of any Claim (accompanied by such
reasonable supporting documentation as may be in the Indemnitee's possession)
as soon as practicable after the Indemnitee becomes aware thereof; PROVIDED
that the failure of the Indemnitee to give such notice shall not relieve
UtiliCorp of its indemnification obligations under this Agreement, except to
the extent that such failure materially prejudices the rights of UtiliCorp.
(b) In the case of the commencement of any action against
the Indemnitee in respect of which the Indemnitee may seek indemnification
from UtiliCorp hereunder, UtiliCorp will be entitled to participate therein,
including, without limitation, the negotiation and approval of any
settlement of such action and, to the extent that UtiliCorp may wish to
assume the defense thereof, with counsel reasonably satisfactory to the
Indemnitee, and after notice from UtiliCorp to the Indemnitee of UtiliCorp's
election so to assume the defense thereof, together with UtiliCorp's written
acknowledgement and agreement that it will fully indemnify the Indemnitee
under the terms of this Agreement with regard to such Claim, UtiliCorp will
not be liable to the Indemnitee under this Agreement for any Expenses
subsequently incurred by the Indemnitee in connection with the defense
thereof other than reasonable costs of investigation and preparation therefor
(including, without limitation, appearing as a witness and reasonable fees
and expenses of legal counsel in connection therewith). If in any action for
which indemnity may be sought hereunder UtiliCorp shall not have timely
assumed the defense thereof with counsel reasonably satisfactory to the
Indemnitee, or the Indemnitee shall have been advised by counsel that it
would constitute a conflict of interest for the same counsel to represent
both the Indemnitee and UtiliCorp in such action, or if the Indemnitee may
have separate or additional defenses with regard to such action, the
Indemnitee shall have the right to employ counsel for the Indemnitee
reasonably satisfactory to UtiliCorp in such action, in which event UtiliCorp
shall reimburse the Indemnitee for all reasonable legal fees and expenses
incurred by the Indemnitee in connection with the defense thereof. UtiliCorp
shall in no event be liable for any settlement of any action effected without
its prior written consent (which consent shall not be unreasonably withheld,
delayed and conditioned). UtiliCorp shall not settle any Claim in any manner
that would impose any expense, penalty, obligation or limitation on the
Indemnitee, or would contain language other than a recitation of any amounts
to be paid in settlement, the fact of the settlement or the underlying claim
relating to the settlement, that could be viewed, in the sole discretion of
the Indemnitee, as an acknowledgement of wrongdoing on the part of the
Indemnitee or as detrimental to the reputation of the Indemnitee, without the
Indemnitee's prior written consent.
(c) The Indemnitee's right to indemnification in this
SECTION 3 shall include the right of the Indemnitee to be advanced by
UtiliCorp any Expenses incurred in connection with any Indemnifiable Event as
such Expenses are incurred by the Indemnitee; PROVIDED, HOWEVER, that all
amounts advanced in respect of such Expenses shall be repaid to UtiliCorp by
the Indemnitee if it shall ultimately be determined in a final judgment
without further right to appeal by a court of appropriate jurisdiction that
the Indemnitee is not entitled to be indemnified for such Expenses because
the Loss arose as a result of the Indemnitee's recklessness or willful
misconduct.
4. PARTIAL INDEMNITY. If the Indemnitee is entitled under any
provision of this Agreement to indemnification by UtiliCorp for some or a
portion of any Loss, but not for all of the total amount thereof, UtiliCorp
shall nevertheless indemnify the Indemnitee for the portion thereof to which
the Indemnitee is entitled. Moreover, notwithstanding any other provision of
this Agreement, to the extent that the Indemnitee has been successful on the
merits or otherwise in defense of any or all Claims relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter therein,
including dismissal without prejudice, the Indemnitee shall be indemnified
against all Expenses incurred in connection therewith.
5. NO PRESUMPTIONS. For purposes of this Agreement, the termination
of any claim, action, suit or proceeding, by judgment, order, settlement
(whether with or without court approval), or upon a plea of nolo contendere,
or its equivalent, shall not create a presumption that the Indemnitee did not
meet any particular standard of conduct or have any particular belief or that
a court has determined that indemnification is not permitted by applicable
law.
6. NONEXCLUSIVITY. The rights of the Indemnitee hereunder shall
be in addition to any other rights the Indemnitee may have under any bylaw,
insurance policy, corporate law or otherwise. To the extent that a change in
applicable law (whether by statute or judicial decision) would permit greater
indemnification by agreement than would be afforded currently under this
Agreement, it is the intent of the parties hereto that the Indemnitee shall
enjoy by this Agreement the greater benefits so afforded by such change.
7. AMENDMENT, ETC. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether
or not similar) nor shall such waiver constitute a continuing waiver.
8. SUBROGATION. In the event of any payment under this Agreement,
UtiliCorp shall be subrogated to the extent of such payment to all of the
rights of recovery of the Indemnitee, and the Indemnitee shall execute all
papers reasonably required and shall take such action that may be reasonably
necessary to secure such rights, including the execution of such documents
reasonably necessary to enable UtiliCorp effectively to bring suit to enforce
such rights.
9. NO DUPLICATION OF PAYMENTS. UtiliCorp shall not be liable
under this Agreement to make any payment in connection with a Claim made
against the Indemnitee to the extent the Indemnitee has otherwise actually
received payment (under any insurance policy, bylaw or otherwise) of the
amounts otherwise indemnifiable hereunder, PROVIDED that, if the Indemnitee
for any reason is required to disgorge any payment actually received,
UtiliCorp shall be obligated to pay such amount to the Indemnitee in
accordance with the other terms of this Agreement (I.E., disregarding the
terms of this SECTION 9).
10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to principles of conflicts of laws.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts for the convenience of the parties hereto, all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
UTILICORP:
UTILICORP UNITED INC.
By: /s/ Keith G. Stamm
-----------------------------
Name: Keith G. Stamm
Title: President and Chief Operating
Officer, Global Networks Group
NOMINEE:
/s/ William H. Starbuck, Ph.D.
-------------------------------------
William H. Starbuck, Ph.D.
Dates Referenced Herein and Documents Incorporated by Reference
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