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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a)
AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
PERINI CORPORATION
(Name of Issuer)
Common Stock, $1.00 par value
(Title of Class of Securities)
713839 10 8
(CUSIP Number)
Kathleen E. Shannon
Vice President and Secretary
American International Group, Inc.
70 Pine Street
New York, New York 10270
(212) 770-5123
(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
February 5, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act.
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SCHEDULE 13D
CUSIP No. 713839 10 8
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
AMERICAN INTERNATIONAL GROUP, INC.
IRS ID No. 13-2592361
2. Check the Appropriate Box If a Member of a Group (A) / /
3. SEC Use Only (B) / /
4. Source of Funds
OO
5. Check Box If Disclosure of Legal Proceedings Is Required Pursuant / /
to Items 2(d) or (e)
6. Citizenship or Place of Organization
Incorporated under the laws of the State of Delaware
Number of Shares 7. Sole Voting Power
Beneficially Owned
By Each Reporting 0
Person with
8. Shared Voting Power
4,705,882
9. Sole Dispositive Power
0
10. Shared Dispositive Power
4,705,882
11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,705,882
12. Check Box If the Aggregate Amount in Row (11) Excludes / /
Certain Shares
13. Percent of Class Represented by Amount in Row (11)
20.9
14. Type of Reporting Person
HC, CO
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SCHEDULE 13D
CUSIP No. 713839 10 8
1. Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
IRS ID No. 25-0687550
2. Check the Appropriate Box If a Member of a Group (A) / /
3. SEC Use Only (B) / /
4. Source of Funds
WC
5. Check Box If Disclosure of Legal Proceedings Is Required Pursuant / /
to Items 2(d) or (e)
6. Citizenship or Place of Organization
Incorporated under the laws of the Commonwealth of Pennsylvania
Number of Shares 7. Sole Voting Power
Beneficially Owned
By Each Reporting 0
Person with
8. Shared Voting Power
4,705,882
9. Sole Dispositive Power
0
10. Shared Dispositive Power
4,705,882
11. Aggregate Amount Beneficially Owned by Each Reporting Person
4,705,882
12. Check Box If the Aggregate Amount in Row (11) Excludes / /
Certain Shares
13. Percent of Class Represented by Amount in Row (11)
20.9
14. Type of Reporting Person
IC, CO
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ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D relates to shares of common stock, par
value $1.00 per share (the "Common Stock"), of Perini Corporation, a
Massachusetts corporation (the "Issuer"). The principal executive offices of the
Issuer are located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) and (f) This Statement is filed by American
International Group, Inc., a Delaware corporation ("AIG"), on behalf of itself
and its wholly-owned subsidiary, National Union Fire Insurance Company of
Pittsburgh, Pa., a Pennsylvania corporation ("National Union"). The principal
executive offices of AIG and National Union are located at 70 Pine Street, New
York, New York 10270. AIG is a holding company which, through its subsidiaries,
is primarily engaged in a broad range of insurance and insurance-related
activities and financial services in the United States and abroad. AIG's primary
activities include both general and life insurance operations.
Starr International Company, Inc., a private holding company
organized under the laws of Panama ("SICO"), The Starr Foundation, a New York
not-for-profit corporation ("Starr Foundation"), and C.V. Starr & Co., Inc., a
Delaware corporation ("Starr"), have the right to vote approximately 13.7%, 2.9%
and 2.0%, respectively, of the outstanding common stock of AIG. The principal
executive offices of SICO are located at 29 Richmond Road, American
International Building, Pembroke HM08 Bermuda. The principal executive offices
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of each of Starr Foundation and Starr are located at 70 Pine Street, New York,
New York 10270.
The names of the directors and executive officers ("Covered
Persons") of AIG, National Union, SICO, Starr Foundation and Starr, their
business addresses and principal occupations are set forth in Exhibit B attached
hereto, which is incorporated herein by reference in its entirety. The business
address indicated for each Covered Person is also the address of the principal
employer for such Covered Person. Each of the Covered Persons is a citizen of
the United States, except for Messrs. Johnson, Manton, Milton, Sullivan and Tse,
who are British subjects, Mr. Danielsson who is a Swedish citizen, and Mr.
Cohen, who is a Canadian citizen.
(d) and (e) During the last five years, none of AIG, National Union,
SICO, Starr Foundation or Starr, or any of the Covered Persons, has (i) been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to Federal or
State securities laws or finding any violations with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As described in Item 4 below, the shares of Common Stock have not
been purchased by National Union as of the date hereof. The source of funds for
the investment in the Common Stock of the Issuer, if the transactions described
in Item 4 below are consummated, will be the working capital of National Union.
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ITEM 4. PURPOSE OF TRANSACTION.
(a) through (j) The purpose of the acquisition of Common Stock
contemplated by National Union is for investment. National Union, the Issuer,
Tutor-Saliba Corporation ("Tutor-Saliba") and O&G Industries, Inc. ("O&G") have
entered into a Securities Purchase Agreement, dated as of February 5, 2000 (the
"Securities Purchase Agreement"), pursuant to which National Union, Tutor-Saliba
and O&G have agreed to purchase 4,705,882, 2,352,941 and 2,352,941 shares,
respectively, of the Common Stock of the Issuer. The Securities Purchase
Agreement is subject to certain significant contingencies including, but not
limited to, the satisfaction of due diligence by National Union and O&G, the
exchange of 100% of the Issuer's outstanding Series B Cumulative Convertible
Preferred Stock (the "Series B Preferred Stock") for Common Stock, the
renegotiation of the Issuer's current credit facilities and stockholder
approval. In connection with the closing (the "Closing") of the transactions
contemplated by the Securities Purchase Agreement, National Union, Tutor-Saliba,
Ronald N. Tutor ("RNT"), O&G, the Issuer and certain other parties will execute
and become parties to a shareholders agreement (the "Shareholders Agreement")
and a registration rights agreement (the "Registration Rights Agreement").
The Shareholders Agreement will give National Union the right, under
certain circumstances, to put some or all of the shares of Common Stock it will
purchase to Tutor-Saliba and/or RNT for a price specified in the Shareholders
Agreement. Similarly, it will give Tutor-Saliba and RNT the right, under certain
circumstances, to call such shares of Common Stock from National Union for a
price specified in the Shareholders Agreement. The Shareholders Agreement will
prohibit National Union, Tutor-Saliba, O&G, their transferees, and the holders
of the Series B Preferred Stock that are exchanging their shares for Common
Stock (the "Exchanging Holders") from transferring any shares of Common Stock
for three years following the Closing if such transfer would result in a
limitation being placed on the deductibility of the Issuer's net operating loss
carry forwards under Section 382 of the Internal Revenue Code. National Union,
Tutor-Saliba, O&G and the Exchanging Holders will also agree to vote their
shares of Common Stock against any stock issuance or redemption by the Issuer if
that issuance or redemption would result in such a limitation and to use
reasonable efforts to cause any directors designated by them to oppose any such
transaction. The Shareholders Agreement will give each of National Union and
Tutor-Saliba a right of first refusal on dispositions of Issuer stock by each
other, and will give National Union, Tutor-Saliba, O&G and the Exchanging
Holders rights to sell when any other party sells its Issuer stock. The
Shareholders Agreement also provides, subject to certain shareholding
requirements, that each of National Union, Tutor-Saliba, O&G and two of the
Exchanging Holders shall have the right to designate one director each to be
appointed to the Board of Directors of the Issuer at the Closing and,
thereafter, to be nominated to the Board of Directors of the Issuer by the
Nominating Committee of such Board. The Issuer will agree to use its best
efforts to cause such persons to be elected as directors and each of National
Union, Tutor-Saliba, O&G and the Exchanging Holders will agree to vote their
shares of Common Stock of the Issuer in favor of each others' nominees. The
Shareholders Agreement will also give National Union, Tutor-Saliba, O&G and the
Exchanging Holders pre-emptive rights with respect to certain issuances of
securities by the Issuer. The Shareholders Agreement will expire on the sixth
anniversary of the Closing.
The Registration Rights Agreement will grant to National Union,
Tutor-Saliba, O&G and the Exchanging Holders certain demand and "piggy-back"
registration rights with respect to the shares of Common Stock of the Issuer
owned by them immediately following consummation of the transactions
contemplated by the Securities Purchase Agreement.
Subject to certain restrictions set forth in the Securities Purchase
Agreement and the Shareholders Agreement and applicable legal requirements, AIG
and National Union may purchase additional shares of Common Stock from time to
time or may dispose of all or a portion of their shares of Common Stock. AIG and
National Union intend to consider and review various factors on a continuous
basis, including without limitation the Issuer's financial condition, business
and prospects, other developments concerning the Issuer, the price and
availability of shares of Common Stock, other investment and business
opportunities available to AIG and National Union, developments with respect to
the business of AIG and National Union, and general economic, money or stock
market conditions in managing their investments in the Common Stock.
Except as set forth above, AIG and National Union do not have any
present plans or proposals which relate to, or could result in, any of the
matters referred to in Paragraphs (a) through (j) of this Item 4. Subject to
certain restrictions set forth in the Securities Purchase Agreement and
Shareholders Agreement and applicable law, AIG and National Union may, at any
time and from time to time, review or reconsider their position and formulate
plans or proposals with respect thereto, but have no present intentions of doing
so.
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ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) The information required by these paragraphs is set
forth in Items 7 through 11 and 13 of each of the cover pages of this Schedule
13D and is based upon (i) information provided by the Issuer that 5,682,287
shares of Common Stock were outstanding as of February 5, 2000 and (ii) an
assumption that the Closing will occur on March 15, 2000 and that 7,461,398
shares of Common Stock will be issued to the holders of the Series B Preferred
Stock in connection with the Closing. If the Closing occurs after March 15,
2000, the number of shares of Common Stock issued to the holders of the Series B
Preferred Stock will increase at a rate of approximately 2,073 shares of Common
Stock per day.
(c) AIG, National Union, SICO, Starr Foundation and Starr, and, to
the best of AIG's and National Union's knowledge, the Covered Persons, have not
engaged in any transactions in Common Stock within the past 60 days other than
those transactions described in this Schedule 13D.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Other than the Securities Purchase Agreement, the Shareholders
Agreement and the Registration Rights Agreement described in Item 4 of this
Schedule 13D, neither AIG or National Union nor, to the best of AIG's or
National Union's knowledge, any of SICO, Starr Foundation or Starr nor any of
the Covered Persons, has any contracts, arrangements, understandings or
relationships (legal or otherwise) with any person with respect to any
securities of the Issuer, including, but not limited to, transfer or voting of
any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
losses, or the giving or withholding of proxies.
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ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(a) Agreement of Joint Filing by and between American
International Group, Inc. and National Union Fire
Insurance Company of Pittsburgh, Pa., dated as of
February 10, 2000.
(b) List of Directors and Executive Officers of American
International Group, Inc., National Union Fire
Insurance Company of Pittsburgh, Pa., Starr
International Company, Inc., The Starr Foundation and
C.V. Starr & Co., Inc.
(c) Securities Purchase Agreement, dated as of February 5,
2000, among Perini Corporation, Tutor-Saliba
Corporation, O&G Industries, Inc. and National Union
Fire Insurance Company of Pittsburgh, Pa.
(d) Form of Shareholders' Agreement by and among
Tutor-Saliba Corporation, Ronald N. Tutor, National
Union Fire Insurance Company of Pittsburgh, Pa., O&G
Industries, Inc., BLUM Capital Partners, L.P., PB
Capital Partners, L.P., The Common Fund for Non-Profit
Organizations and The Union Labor Life Insurance
Company acting on behalf of its Separate Account P, and
Perini Corporation.
(e) Form of Registration Rights Agreement by and among
Perini Corporation, Tutor-Saliba Corporation, Ronald N.
Tutor, National Union Fire Insurance Company of
Pittsburgh, Pa., O&G Industries, Inc., BLUM Capital
Partners, L.P., PB Capital Partners, L.P., The Common
Fund for Non-Profit Organizations, and The Union Labor
Life Insurance Company, acting on behalf of its
Separate Account P.
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After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Statement is true,
complete and correct.
Dated: February 15, 2000
AMERICAN INTERNATIONAL GROUP, INC.
BY: /s/ Kathleen E. Shannon
_______________________________
Kathleen E. Shannon
Vice President and Secretary
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.
BY: /s/ Edward E. Matthews
_______________________________
Edward E. Matthews
Senior Vice President
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EXHIBIT INDEX
Exhibit Description
(a) Agreement of Joint Filing by and between American
International Group, Inc. and National Union Fire
Insurance Company of Pittsburgh, Pa., dated as of February
10, 2000.
(b) List of Directors and Executive Officers of American
International Group, Inc., National Union Fire Insurance
Company of Pittsburgh, Pa., Starr International Company,
Inc., The Starr Foundation and C.V. Starr & Co., Inc.
(c) Securities Purchase Agreement, dated as of February 5,
2000, among Perini Corporation, Tutor-Saliba Corporation,
O&G Industries, Inc. and National Union Fire Insurance
Company of Pittsburgh, Pa.
(d) Form of Shareholders' Agreement by and among Tutor-Saliba
Corporation, Ronald N. Tutor, National Union Fire
Insurance Company of Pittsburgh, Pa., O&G Industries,
Inc., BLUM Capital Partners, L.P., PB Capital Partners,
L.P., The Common Fund for Non-Profit Organizations and The
Union Labor Life Insurance Company acting on behalf of its
Separate Account P, and Perini Corporation.
(e) Form of Registration Rights Agreement by and among Perini
Corporation, Tutor-Saliba Corporation, Ronald N. Tutor,
National Union Fire Insurance Company of Pittsburgh, Pa.,
O&G Industries, Inc., BLUM Capital Partners, L.P., PB
Capital Partners, L.P., The Common Fund for Non-Profit
Organizations, and The Union Labor Life Insurance Company,
acting on behalf of its Separate Account P.
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EXHIBIT (a)
AGREEMENT OF JOINT FILING
In accordance with Rule 13d-1(f) under the Securities Exchange
Act of 1934, as amended, the undersigned hereby agree to the joint filing on
behalf of each of them of a Statement on Schedule 13D, or any amendments
thereto, with respect to the Common Stock, par value $1.00 per share, of Perini
Corporation and that this Agreement be included as an Exhibit to such filing.
Each of the undersigned parties represents and warrants to the
other that the information contained in any amendment thereto about it will be,
true, correct and complete in all material respects and in accordance with all
applicable laws. Each of the undersigned parties agrees to inform the other of
any changes in such information or of any additional information which would
require any amendment to the Schedule 13D and to promptly file such amendment.
Each of the undersigned parties agrees to indemnify the other
for any losses, claims, liabilities or expenses (including reasonable legal fees
and expenses) resulting from, or arising in connection with, the breach by such
party of any of representations, warranties or agreements in this Agreement.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together shall
be deemed to constitute one and the same Agreement.
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IN WITNESS WHEREOF, each of the undersigned hereby executes this
Agreement as of February 10, 2000.
AMERICAN INTERNATIONAL GROUP, INC.
By: /s/ Kathleen E. Shannon
-------------------------------------
Name: Kathleen E. Shannon
Title: Vice President and
Secretary
NATIONAL UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA.
By: /s/ Edward E. Matthews
-------------------------------------
Name: Edward E. Matthews
Title: Senior Vice President
A-2
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EXHIBIT (b)
AMERICAN INTERNATIONAL GROUP, INC.
DIRECTORS
M. Bernard Aidinoff Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Eli Broad SunAmerica Inc.
1 SunAmerica Center
Century City
Los Angeles, California 90067
Pei-yuan Chia 298 Bedford - Banksville Road
Bedford, New York 10506
Marshall A. Cohen Cassels, Brock & Blackwell
40 King Street West
20th Floor
Toronto, Ontario M5H 3C2
Barber B. Conable, Jr. P.O. Box 218
Alexander, New York 14005
Martin S. Feldstein National Bureau of Economic
Research, Inc.
1050 Massachusetts Avenue
Cambridge, Massachusetts 02138
Ellen V. Futter American Museum of Natural History
West 79th Street
New York, New York 10024
Leslie L. Gonda International Lease Finance Corporation
1999 Avenue of the Stars
Los Angeles, California 90067
Evan G. Greenberg American International Group, Inc.
70 Pine Street
New York, New York 10270
M. R. Greenberg American International Group, Inc.
70 Pine Street
New York, New York 10270
Carla A. Hills Hills & Company
1200 19th Street, N.W. - 5th Floor
Washington, DC 20036
Frank J. Hoenemeyer 7 Harwood Drive
Madison, New Jersey 07940
B-1
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Edward E. Matthews American International Group, Inc.
70 Pine Street
New York, New York 10270
Dean P. Phypers 220 Rosebrook Road
New Canaan, Connecticut 06840
Howard I. Smith American International Group, Inc.
70 Pine Street
New York, New York 10270
Thomas R. Tizzio American International Group, Inc.
70 Pine Street
New York, New York 10270
Edmund S.W. Tse American International Assurance
Co., Ltd.
1 Stubbs Road
Hong Kong
Jay S. Wintrob SunAmerica Inc.
1 SunAmerica Center
Los Angeles, California 90067
Frank G. Wisner American International Group, Inc.
70 Pine Street
New York, New York 10270
B-2
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AMERICAN INTERNATIONAL GROUP, INC.
EXECUTIVE OFFICERS
M.R. Greenberg Chairman & Chief Executive Officer
70 Pine Street
New York, New York 10270
Thomas R. Tizzio Senior Vice Chairman - General
70 Pine Street Insurance
New York, New York 10270
Edward E. Matthews Vice Chairman - Investments &
70 Pine Street Financial Services
New York, New York 10270
Edmund S.W. Tse Vice Chairman - Life Insurance
American International
Assurance Co., Ltd.
1 Stubbs Road
Hong Kong
Frank G. Wisner Vice Chairman - External Affairs
70 Pine Street
New York, New York 10270
Evan G. Greenberg President & Chief Operating Officer
70 Pine Street 70 Pine Street
New York, New York 10270 New York, New York 10270
Edwin A.G. Manton Senior Advisor
70 Pine Street
New York, New York 10270
John J. Roberts Senior Advisor
70 Pine Street
New York, New York 10270
Ernest E. Stempel Senior Advisor
70 Pine Street
New York, New York 10270
Kristian P. Moor Executive Vice President - Domestic
70 Pine Street General Insurance
New York, New York 10270
R. Kendall Nottingham Executive Vice President - Life
70 Pine Street Insurance
New York, New York 10270
Robert B. Sandler Executive Vice President - Senior
70 Pine Street Casualty Actuary & Senior Claims
New York, New York 10270 Officer
Howard I. Smith Executive Vice President, Chief
70 Pine Street Financial Officer & Comptroller
New York, New York 10270
B-3
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William N. Dooley Senior Vice President - Financial
70 Pine Street Services
New York, New York 10270
Lawrence W. English Senior Vice President -
70 Pine Street Administration
New York, New York 10270
Axel I. Freudmann Senior Vice President - Human
72 Wall Street Resources
New York, New York 10270
Win J. Neuger Senior Vice President & Chief
70 Pine Street Investment Officer
New York, New York 10270
Ernest T. Patrikis Senior Vice President & General Counsel
70 Pine Street
New York, New York 10270
Martin J. Sullivan Senior Vice President - Foreign
70 Pine Street General Insurance
New York, New York 10270
Robert E. Lewis Vice President & Chief Credit
70 Pine Street Officer
New York, New York 10270
Charles M. Lucas Vice President & Director of Market
70 Pine Street Risk Management
New York, New York 10270
Frank Petralito II Vice President & Director of Taxes
70 Pine Street
New York, New York 10270
Kathleen E. Shannon Vice President, Secretary &
70 Pine Street Associate General Counsel
New York, New York 10270
John T. Wooster, Jr. Vice President - Communications
70 Pine Street
New York, New York 10270
Carol A. McFate Treasurer
70 Pine Street
New York, New York 10270
B-4
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STARR INTERNATIONAL COMPANY, INC.
EXECUTIVE OFFICERS & DIRECTORS
Houghton Freeman 1880 Mountain Road, #14
Director Stowe, Vermont 05672
Evan G. Greenberg 70 Pine Street
Director New York, New York 10270
M.R. Greenberg 70 Pine Street
Director & Chairman of the New York, New York 10270
Board
Joseph C.H. Johnson American International Building
Director, President & 29 Richmond Road
Treasurer Pembroke HM08 Bermuda
Edwin A.G. Manton 70 Pine Street
Director New York, New York 10270
Edward E. Matthews 70 Pine Street
Director New York, New York 10270
L. Michael Murphy American International Building
Director, Vice President & 29 Richmond Road
Secretary Pembroke HM08 Bermuda
John J. Roberts 70 Pine Street
Director New York, New York 10270
Robert M. Sandler 70 Pine Street
Director New York, New York 10270
Ernest E. Stempel 70 Pine Street
Director New York, New York 10270
Thomas R. Tizzio 70 Pine Street
Director New York, New York 10270
Edmund S.W. Tse 1 Stubbs Road
Director Hong Kong
B-5
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THE STARR FOUNDATION
EXECUTIVE OFFICERS & DIRECTORS
M.R. Greenberg 70 Pine Street
Director and Chairman New York, New York 10270
Florence A. Davis 70 Pine Street
Director and President New York, New York 10270
Marion I. Breen 70 Pine Street
Director New York, New York 10270
Evan G. Greenberg 70 Pine Street
Director New York, New York 10270
T.C. Hsu 70 Pine Street
Director New York, New York 10270
Edwin A.G. Manton 70 Pine Street
Director New York, New York 10270
Edward E. Matthews 70 Pine Street
Director New York, New York 10270
John J. Roberts 70 Pine Street
Director New York, New York 10270
Howard I. Smith 70 Pine Street
Director New York, New York 10270
Ernest E. Stempel 70 Pine Street
Director New York, New York 10270
Edmund S.W. Tse 1 Stubbs Road
Director Hong Kong
Gladys Thomas 70 Pine Street
Vice President and Secretary New York, New York 10270
Janet M. Offensend 70 Pine Street
Treasurer New York, New York 10270
B-6
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C.V. STARR & CO., INC.
OFFICERS & DIRECTORS
Houghton Freeman 1880 Mountain Road, #14
Director Stowe, Vermont 05672
E.G. Greenberg 70 Pine Street
Director & Executive Vice New York, New York 10270
President
M.R. Greenberg 70 Pine Street
Director, President & Chief New York, New York 10270
Executive Officer
Edwin A.G. Manton 70 Pine Street
Director New York, New York 10270
Edward E. Matthews 70 Pine Street
Director & Senior Vice New York, New York 10270
President
John J. Roberts 70 Pine Street
Director New York, New York 10270
Robert M. Sandler 70 Pine Street
Director & Vice President New York, New York 10270
Howard I. Smith 70 Pine Street
Director & Senior Vice New York, New York 10270
President
Ernest E. Stempel 70 Pine Street
Director New York, New York 10270
Thomas R. Tizzio 70 Pine Street
Director & Senior Vice New York, New York 10270
President
Edmund S.W. Tse 1 Stubbs Road
Director & Senior Vice Hong Kong
President
Gary Nitzsche 70 Pine Street
Treasurer New York, New York 10270
Kathleen E. Shannon 70 Pine Street
Secretary New York, New York 10270
B-7
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NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
DIRECTORS
John P. Cavoores American International Group, Inc.
70 Pine Street
New York, New York 10270
Charles H. Dangelo American International Group, Inc.
70 Pine Street
New York, New York 10270
Evan G. Greenberg American International Group, Inc.
70 Pine Street
New York, New York 10270
M.R. Greenberg American International Group, Inc.
70 Pine Street
New York, New York 10270
David M. Hupp American International Group, Inc.
70 Pine Street
New York, New York 10270
Robert P. Jacobson American International Group, Inc.
70 Pine Street
New York, New York 10270
Edwin A. G. Manton American International Group, Inc.
70 Pine Street
New York, New York 10270
Edward E. Matthews American International Group, Inc.
70 Pine Street
New York, New York 10270
Christian M. Milton American International Group, Inc.
70 Pine Street
New York, New York 10270
Kristian P. Moor American International Group, Inc.
70 Pine Street
New York, New York 10270
Win J. Neuger American International Group, Inc.
70 Pine Street
New York, New York 10270
Robert M. Sandler American International Group, Inc.
70 Pine Street
New York, New York 10270
Thomas R. Tizzio American International Group, Inc.
70 Pine Street
New York, New York 10270
B-8
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NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
EXECUTIVE OFFICERS
Thomas R. Tizzio Chairman of the Board of Directors
70 Pine Street
New York, New York 10270
Kristian P. Moor Vice Chairman of the Board of Directors
70 Pine Street
New York, New York 10270
John P. Cavoores Chief Executive Officer and President
70 Pine Street
New York, New York 10270
Lawrence W. Carlstrom Senior Vice President
70 Pine Street
New York, New York 10270
Frank H. Douglas, Jr. Senior Vice President and
70 Pine Street Actuary
New York, New York 10270
John Q. Doyle Senior Vice President
70 Pine Street
New York, New York 10270
David M. Hupp Senior Vice President
70 Pine Street
New York, New York 10270
Robert P. Jacobson Senior Vice President and
70 Pine Street Treasurer
New York, New York 10270
Vincent J. Masucci Senior Vice President
777 S. Figueroa Street
18th Floor
Los Angeles, California 90017
Edward E. Matthews Senior Vice President
70 Pine Street
New York, New York 10270
Vincent C. Tizzio Senior Vice President
70 Pine Street
New York, New York 10270
Mark T. Willis Senior Vice President
500 W. Madison Street
Chicago, Illinois 60661
Robert J. Beier Vice President and
70 Pine Street Comptroller
New York, New York 10270
John J. Blumenstock Vice President and
70 Pine Street Assistant Comptroller
New York, New York 10270
John G. Colona Vice President
70 Pine Street
New York, New York 10270
Robert K. Conry Vice President
70 Pine Street
New York, New York 10270
Kenneth B. Cornell Vice President
70 Pine Street
New York, New York 10270
Hans Danielsson Vice President
70 Pine Street
New York, New York 10270
Agustin Formoso Vice President
70 Pine Street
New York, New York 10270
Brian S. Frisch Vice President and
70 Pine Street Assistant Comptroller
New York, New York 10270
B-9
<PAGE> 10
Michael F. Greer Vice President
70 Pine Street
New York, New York 10270
Kenneth V. Harkins Vice President and
70 Pine Street General Counsel
New York, New York 10270
Harold S. Jacobowitz Vice President
70 Pine Street
New York, New York 10270
Donn R. Kolbeck Vice President
70 Pine Street
New York, New York 10270
Christian M. Milton Vice President
70 Pine Street
New York, New York 10270
Lena Mkhitarian Vice President
70 Pine Street
New York, New York 10270
Win J. Neuger Vice President
70 Pine Street
New York, New York 10270
David B. Pinkerton Vice President
70 Pine Street
New York, New York 10270
Michael V. Tripp Vice President
70 Pine Street
New York, New York 10270
B-10
<PAGE> 1
Exhibit (c)
SECURITIES PURCHASE AGREEMENT
DATED AS OF FEBRUARY 5, 2000
AMONG
PERINI CORPORATION,
AND
TUTOR-SALIBA CORPORATION
AND
O&G INDUSTRIES, INC.
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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Page
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ARTICLE I DEFINITIONS............................................................................................ 1
ARTICLE II PURCHASE AND SALE OF SHARES........................................................................... 6
SECTION 2.01 Purchase and Sale of Shares.......................................... 6
SECTION 2.02 Time and Place of the Closing........................................ 7
SECTION 2.03 Transactions at the Closing.......................................... 7
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................................................... 7
SECTION 3.01 Representations and Warranties of the Company........................ 7
SECTION 3.02 Representations and Warranties of TSC................................ 22
SECTION 3.03 Representations and Warranties of National Union..................... 24
SECTION 3.04 Representations and Warranties of O&G................................ 25
ARTICLE IV [INTENTIONALLY OMITTED]............................................................................... 27
ARTICLE V COVENANTS AND ADDITIONAL AGREEMENTS.................................................................... 27
SECTION 5.01 Pre-Closing Activities............................................... 27
SECTION 5.02 Covenants of the Company............................................. 27
SECTION 5.03 HSR.................................................................. 29
SECTION 5.04 [Intentionally Omitted].............................................. 29
SECTION 5.05 Stockholder Approvals; Proxy Statement............................... 29
SECTION 5.06 Stock Exchange Listing............................................... 30
SECTION 5.07 Transaction Proposals................................................ 31
SECTION 5.08 Access and Information............................................... 31
SECTION 5.09 Confidentiality and Publicity........................................ 33
SECTION 5.10 Restrictions......................................................... 33
SECTION 5.11 Further Assurances................................................... 33
SECTION 5.12 Directors' and Officers' Indemnification and Insurance............... 34
SECTION 5.13 Shareholders Agreement............................................... 34
ARTICLE VI CONDITIONS PRECEDENT.................................................................................. 34
SECTION 6.01 Conditions to Each Party's Obligations............................... 35
SECTION 6.02 Conditions to the Obligations of the Company......................... 35
SECTION 6.03 Conditions to the Obligations of Purchasers.......................... 37
ARTICLE VII TERMINATION.......................................................................................... 41
SECTION 7.01 Termination.......................................................... 41
SECTION 7.02 Effect of Termination................................................ 43
SECTION 7.03 Termination by One Purchaser......................................... 43
ARTICLE VIII INDEMNIFICATION..................................................................................... 44
SECTION 8.01 Indemnification of Purchasers........................................ 44
SECTION 8.02 Indemnification Procedures........................................... 45
SECTION 8.03 Survival of Representations, Warranties and Covenants................ 45
ARTICLE IX MISCELLANEOUS......................................................................................... 45
SECTION 9.01 Severability......................................................... 46
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<TABLE>
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SECTION 9.02 Specific Enforcement................................................. 46
SECTION 9.03 Entire Agreement..................................................... 46
SECTION 9.04 Counterparts......................................................... 46
SECTION 9.05 Notices.............................................................. 46
SECTION 9.06 Amendments........................................................... 48
SECTION 9.07 Successors and Assigns............................................... 48
SECTION 9.08 Expenses and Remedies................................................ 48
SECTION 9.09 Transfer of Shares................................................... 49
SECTION 9.10 Governing Law; Consent to Jurisdiction............................... 50
SECTION 9.11 Third Party Beneficiaries............................................ 50
SECTION 9.12 Mutual Drafting...................................................... 50
SECTION 9.13 Further Representations.............................................. 51
</TABLE>
ii
<PAGE> 4
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of February 5, 2000, is entered into between Tutor-Saliba Corporation, a
California corporation ("TSC"), O&G Industries, Inc., a Connecticut corporation
("O&G"), and the National Union Fire Insurance Company of Pittsburgh, PA, a
Pennsylvania corporation ("National Union") and, collectively with TSC and O&G,
the "Purchasers"), and Perini Corporation, a Massachusetts corporation (the
"Company").
R E C I T A L S
WHEREAS, the Company is engaged primarily in the construction
business; and
WHEREAS, Purchasers propose to invest $40 million in the
Company in order to mitigate the continuing effects of the Company's negative
net worth on its business and financial condition; and
WHEREAS, the Company wishes to sell, and Purchasers wish to
purchase (severally but not jointly), an aggregate of 9,411,765 newly issued
shares of common stock, par value $1.00, of the Company (the "Common Stock"),
each for the consideration and upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article I, whenever used in this
Agreement, shall have the following meanings for all purposes of this Agreement:
1.01 "Affiliate" has the meaning set forth in Rule 12b-2 under
the Exchange Act.
1.02 "Articles of Organization" means the Articles of
Organization of the Company as filed with the Office of the Secretary of State
for the Commonwealth of Massachusetts, as amended, restated or supplemented from
time to time.
1.03 "Balance Sheet" is defined in Section 3.01(g).
1.04 "Benefit Arrangement" means any benefit arrangement,
obligation, or practice, whether or not legally enforceable, to provide benefits
(other than merely as salary or under a Benefit Plan), as compensation for
services rendered, to present or former directors, employees, agents, or
independent contractors, including, but not limited to, employment or consulting
agreements, severance agreements or pay policies, executive or incentive
compensation programs or arrangements, sick leave, vacation pay, plant closing
benefits, salary
<PAGE> 5
continuation for disability, workers' compensation, retirement, deferred
compensation, bonus, stock option or purchase, tuition reimbursement or
scholarship programs, employee discount programs, any plans subject to Section
125 of the Code, and any plans providing benefits or payments in the event of a
change of control, change in ownership or effective control, or sale of a
substantial portion (including all or substantially all) of the assets of any
business or portion thereof, in each case with respect to any present or former
employees, directors, or agents.
1.05 "Benefit Plan" means an employee benefit plan as defined
in Section 3(3) of ERISA, together with plans or arrangements that would be so
defined if they were not (i) otherwise exempt from ERISA by that or another
section, (ii) maintained outside the United States, or (iii) individually
negotiated or applicable to only one person.
1.06 "Board" means the Board of Directors of the Company.
1.07 "Business Day" has the meaning specified in Rule
14d-1(e)(6) of the Exchange Act.
1.08 "By-Laws" is defined in Section 3.01(a).
1.09 "By-Law Amendment" is defined in Section 6.03(d).
1.10 "Closing" is defined in Section 2.02.
1.11 "Closing Date" is defined in Section 2.02.
1.12 "Common Stock" is defined in the third recital.
1.13 "Company" is defined in the first paragraph of this
Agreement.
1.14 "Company Benefit Arrangement" means any Benefit
Arrangement any Related Employer sponsors or maintains or with respect to which
any Related Employer has or may have any current or future liability (whether
actual, contingent, with respect to any of its assets or otherwise) , in each
case with respect to any present or former service providers to any Related
Employer.
1.15 "Company Plan" means any Benefit Plan that any Related
Employer maintains or has maintained or to which any Related Employer is
obligated to make payments or has or may have any liability, in each case with
respect to any present or former employees of any Related Employer.
1.16 "Company Intellectual Property" is defined in Section
3.01(s).
1.17 "Credit Facility" is defined in Section 6.03(g).
1.18 "Disclosure Schedule" means the Disclosure Schedule
attached hereto, which is divided by Section numbers corresponding with
specificity to the Sections hereof and discloses all matters which are
inconsistent with the representations set forth in Section 3.01.
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<PAGE> 6
1.19 "Disinterested Majority" means the affirmative vote of a
majority of the outstanding voting power of the Company's Common Stock, voting
as a single class, excluding any stockholder that is or is an Affiliate of
either (i) a Purchaser or (ii) a holder of Series B Preferred Stock that is
exchanging its shares of such stock for Common Stock as contemplated by Section
6.03(c).
1.20 "Environmental Laws" means the laws of all Governmental
Entities relating to health or pollution or protection of the environment or
contained in any binding and enforceable regulation, code, plan, order, decree
or judgment issued, entered, promulgated or approved thereunder.
1.21 "Environmental Subsidiary" means Perini Environmental
Services, Inc.
1.22 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and all regulations and rules issued thereunder, or any
successor law.
1.23 "ERISA Affiliate" means any person or entity that,
together with the entity referenced and at the relevant time, would be treated
as a single employer under Code Section 414 or ERISA Section 4001 (including any
entities excluded from the definition because they are not subject to U.S.
jurisdiction) and any general partnership of which such entity is or has been a
general partner.
1.24 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
1.25 "Filed Company SEC Documents" is defined in Section
3.01(f).
1.26 "GAAP" means United States generally accepted accounting
principles in effect from time to time.
1.27 "Government Entity" means any foreign, federal, state, or
local court or tribunal or administrative, governmental or regulatory body,
agency, commission, division, department, public body or other authority.
1.28 "Hazardous Material" means any substance that has been
designated by any Governmental Entity or by applicable federal, state, local or
other applicable law to be radioactive, toxic, hazardous or otherwise a danger
to health or the environment, including, without limitation, PCBs, asbestos,
petroleum, urea-formaldehyde and all substances listed as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to
the United States Resource Conservation and Recovery Act of 1976, as amended,
and the regulations promulgated pursuant to said laws, but excluding office and
janitorial supplies properly and safely maintained.
1.29 "HSR Act" is defined in Section 3.01(c).
1.30 "Indemnifiable Losses" means any and all direct or
indirect demands, claims, payments, obligations, actions or causes of action,
assessments, losses, liabilities, fines,
3
<PAGE> 7
damages, costs or expenses paid or incurred, of any kind or character (whether
or not known or asserted before the date of this Agreement, fixed or unfixed,
conditional or unconditional, choate or inchoate, liquidated or unliquidated,
secured or unsecured, accrued, absolute, contingent, or otherwise).
Indemnifiable Losses shall include penalties, interest, or any amount payable to
a third party as a result of such Indemnifiable Losses. Indemnifiable Losses
shall include legal, accounting, expert and other expenses reasonably incurred
in connection with investigating or defending any of the foregoing, whether or
not resulting in any liability, and all amounts paid in settlement of claims or
actions in accordance with Article VIII.
1.31 "Indemnification Agreements" is defined in Section
5.12(b).
1.32 "Intellectual Property" means trademarks, trade names,
trade dress, service marks, copyrights, domain names, and similar rights
(including registrations and applications to register or renew the registration
of any of the foregoing), patents and patent applications, trade secrets, ideas,
inventions, improvements, practices, processes, formulas, designs, know-how,
confidential business or technical information, computer software, firmware,
data and documentation, licenses of or agreements relating to any of the
foregoing, rights of privacy and publicity, moral rights, and any other similar
intellectual property rights and tangible embodiments of any of the foregoing
(in any medium including electronic media).
1.33 "Issuance" is defined in Section 5.05.
1.34 "Knowledge of the Company" means to the actual knowledge
of (i) any executive officer or director of the Company or any Subsidiary of the
Company or (ii) Robert Band, Ronald N. Tutor, Dennis M. Ryan, Zohrab B.
Marashlian, Craig W. Shaw, Michael E. Ciskey or Susan C. Mellace.
1.35 "Lien" is defined in Section 3.01(c).
1.36 "Management Agreement Amendment" is defined in Section
6.01(d).
1.37 "Material Adverse Effect" on or with respect to a Person
(or group of entities taken as a whole) means any state of facts, event or
effect that individually (or in aggregate with all other states of facts, events
and effects) has had, or would reasonably be expected to have, a material
adverse change in the business, properties, prospects, results of operations or
financial condition of such Person (or, if applicable, of such group of Persons
taken as a whole), or on the ability of such entity (or group of Persons) to
consummate the transactions contemplated hereby or to perform its obligations
under the Transaction Documents to which it is or will be a party or by which it
or its properties or assets is or will be bound.
1.38 "Multiemployer Plan" means any plan described in ERISA
Section 3(37).
1.39 "Outside Date" is defined in Section 7.01(b)(i).
1.40 "Owned Intellectual Property" is defined in Section
3.01(s).
4
<PAGE> 8
1.41 "Pension Plan" means any plan subject to Code Section 412
or ERISA Section 302 or Title IV (excluding any Multiemployer Plan) or any
comparable benefit plan not covered by ERISA.
1.42 "Permit" is defined in Section 3.01(c)(i).
1.43 "Permitted Liens" means those Liens (i) securing debt
(including, without limitation, the Credit Facility) that is reflected on the
Balance Sheet or the notes thereto, (ii) referred to in Section 3.01(g) of the
Disclosure Statement, (iii) for Taxes not yet due or payable or being contested
in good faith and for which adequate reserves have been established in
accordance with GAAP, (iv) that constitute mechanics', carriers', workmens' or
like liens, liens arising under original purchase price conditional sales
contracts and equipment leases with third parties entered into in the ordinary
course, or (v) Liens incurred or deposits made in the ordinary course of
business consistent with past practice in connection with workers' compensation,
unemployment insurance and social security, retirement and other legislation and
in the case of Liens described in clauses (ii), (iii), (iv) or (v) that would
not have a Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole.
1.44 "Person" means and includes an individual, a partnership,
a joint venture, a corporation, a trust, limited liability company, an
unincorporated organization, a Government Entity or any other organization or
entity.
1.45 "Proxy Statement" is defined in Section 5.05.
1.46 "Purchase Price" is defined in Section 2.01.
1.47 "Purchasers" is defined in the first paragraph of this
Agreement.
1.48 "Qualified Plan" means any Company Plan intended to meet
the requirements of Section 401(a) of the Code, including any previously
terminated plan.
1.49 "Registration Rights Agreement" is defined in Section
6.02(c)(i).
1.50 "Related Employer" means the Company and every ERISA
Affiliate.
1.51 "Rights Agreement" means that certain Shareholder Rights
Agreement by and between the Company and State Street Bank and Trust Company,
dated as of September 23, 1988, as amended, restated and supplemented from time
to time.
1.52 "SEC" means the Securities and Exchange Commission.
1.53 "Securities Act" means the Securities Act of 1933, as
amended.
1.54 "Shareholders Agreement" is defined in Section
6.02(c)(ii).
1.55 "Shares" means the shares of Common Stock purchased
pursuant to this Agreement.
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<PAGE> 9
1.56 "Stockholder Approvals" is defined in Section 5.05.
1.57 "Stockholder Meeting" is defined in Section 5.05.
1.58 "Stockholder Meeting Proposals" is defined in Section
5.05.
1.59 "Stock Purchase Warrants" is defined in Section 3.01(d).
1.60 "Subsidiary" means, with respect to the Company, any
corporation, limited or general partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated organization, or
other entity analogous to any of the foregoing of which a majority of the equity
ownership (whether voting stock or comparable interest) is, at the time, owned
directly or indirectly by the Company. Subsidiary also means, with respect to
the Company, any such entity of which a minority of the equity ownership is, at
the time, owned directly or indirectly by the Company; provided, however, that,
in the case of such minority-owned entities, any representation or warranty that
is not already qualified to the Company's Knowledge shall be deemed to be so
qualified.
1.61 "Superior Transaction Proposal" is defined in Section
7.01(d).
1.62 "Transaction Documents" means this Agreement, the
Shareholders Agreement, the Registration Rights Agreement, the By-Law Amendment,
and the amendment to the Rights Agreement.
1.63 "Voting Security" means at any time shares of any class
of capital stock of the Company which are then entitled to vote generally in the
election of directors.
1.64 "Year 2000 Compatible" (and variations thereof) means,
with respect to any computer system, that such Computer System (a) records,
stores, processes and provides true and accurate dates and calculations for
dates and spans of dates, (b) is and will be able to operate on a basis
comparable to its current operation during and after calendar year 2000,
including, but not limited to, leap years, and (c) shall not end abnormally or
provide invalid or incorrect results as a result of date data which represents
or references (or fails to represent or reference) different centuries or more
than one century.
ARTICLE II
PURCHASE AND SALE OF SHARES
SECTION 2.01 Purchase and Sale of Shares. Upon the terms and
subject to the conditions set forth herein, the Company agrees to sell to
Purchasers and Purchasers agree (severally and not jointly) to purchase from the
Company 9,411,765 shares of Common Stock for an aggregate purchase price of $40
million (the "Purchase Price"). Each Purchaser shall purchase such number of
Shares as is set forth adjacent to its name on Exhibit 2.01 hereto; provided,
however, that Purchasers shall be entitled to amend Exhibit 2.01 (i) to change
the number of shares each of them is purchasing in their sole, joint discretion,
so long as the number
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<PAGE> 10
of Shares to be purchased equals 9,411,765 and (ii) to reflect any assignment
permitted under Section 9.07.
SECTION 2.02 Time and Place of the Closing. The closing (the
"Closing") shall take place at the offices of Goodwin, Procter & Hoar, Exchange
Place, Boston, Massachusetts 02109, at 10:00 a.m. Boston time, on the third
Business Day following the first date on which the conditions to Closing (other
than the conditions which may only be satisfied at Closing) set forth in Article
VI have first been satisfied or waived, or at such other place, time and date as
the parties may agree. The "Closing Date" shall be the date the Closing occurs,
and shall be effective as of 12:01 a.m. on the Closing Date, unless another date
is agreed to in writing by the Company and Purchasers.
SECTION 2.03 Transactions at the Closing. At the Closing,
subject to the terms and conditions of this Agreement, (a) the Company shall
issue and sell to Purchasers and Purchasers shall purchase the Shares; (b) the
Company and the Purchasers shall enter into the Shareholders Agreement; and (c)
the Company and Purchasers shall enter into the Registration Rights Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the Company.
The Company hereby represents and warrants to Purchasers, except as set forth on
the Disclosure Schedule or as disclosed in the Filed Company SEC documents, as
follows:
(a) Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts. The Company is duly qualified or licensed and, if
applicable, is in good standing as a foreign corporation, in each jurisdiction
in which the properties owned, leased or operated, or the business conducted, by
it require such qualification or licensing, except for any such failure so to
qualify or be in good standing which would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
The Company has the requisite power and authority to carry on its business as it
is now being or is currently proposed to be conducted. The Company has
heretofore made available to Purchasers complete and correct copies of the
Articles of Organization and the Amended and Restated By-laws of the Company,
dated as of January 17, 1997 (the "By-Laws"), in each case as amended, restated
and supplemented.
(b) Corporate Authority. Subject to obtaining the Stockholders
Approvals, each of the Company and its Subsidiaries has (or will have at the
time of such act) the requisite corporate or other power and authority to
execute, deliver and perform each Transaction Document to which it is or will be
a party and to consummate the transactions contemplated thereby. The execution,
delivery and performance of each Transaction Document by the Company and the
consummation by the Company of the transactions contemplated hereby
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<PAGE> 11
and thereby have been duly authorized (or will have been duly authorized at the
time of such act) by the Board, and no other corporate proceedings on the part
of the Company are necessary to authorize any Transaction Document or for the
Company to consummate the transactions so contemplated (other than as expressly
provided in the terms of this Agreement and, with respect to the Issuance, the
Stockholder Approvals). Each Transaction Document to which the Company is or
will be a party is, or when executed and delivered will be, a valid and binding
agreement of such party, enforceable against the Company in accordance with the
terms thereof, assuming that each Transaction Document to which the Company is a
party is a valid and binding agreement of the Purchasers (as applicable).
(c) No Violations; Consents and Approvals.
(i) Assuming that the Stockholder Approvals are
obtained and that the Credit Facility is amended as
contemplated in Section 6.03(g), the execution, delivery or
performance by the Company or any of its Subsidiaries of each
Transaction Document to which any of them is or will be a
party or the consummation by the Company or any of its
Subsidiaries of the transactions contemplated thereby (A) will
not result in a violation or breach of the Articles of
Organization or the By-laws, the articles or certificate of
incorporation or by-laws (or other organizational documents)
of any of the Subsidiaries and (B) subject to the governmental
filings and other matters referred to in clause (ii) below,
will not result in a violation or breach of (or give rise to
any right of termination, revocation, cancellation or
acceleration under or increased payments under), or constitute
a default (with or without due notice or lapse of time or
both) under, or result in the creation of any mortgage, lien,
charge, security interest or encumbrance of any kind (a
"Lien"), other than a Permitted Lien, upon any of the
properties or assets of the Company and its Subsidiaries under
(1) any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, contract, agreement, lease,
license, obligation, instrument, offer, commitment,
understanding or other arrangement (each a "Contract") or of
any license, waiver, exemption, order, franchise, permit or
concession (each a "Permit") to which the Company or any
Subsidiary is a party or by which any of their properties or
assets may be bound, or (2) any judgment, order, decree,
statute, law, regulation or rule applicable to the Company or
any Subsidiary.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
Securities Act, the Exchange Act, and the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and filings under state securities or "blue sky" laws, and as
required by the American Stock Exchange, no consent, approval,
order or authorization of, or registration, declaration or
filing with, any government or any court, administrative
agency or commission or other governmental authority or
agency, federal, state or local or foreign (a "Governmental
Entity"), is required with respect to the Company or any of
its Subsidiaries in connection with the execution, delivery or
8
<PAGE> 12
performance by the Company and any Subsidiary of each
Transaction Document to which it is or will be a party or the
consummation by the Company and its Subsidiaries of the
transactions contemplated hereby and thereby (except where the
failure to obtain such consents, approvals, orders or
authorizations, or to make such registrations, declarations,
filings or agreements would not have a Material Adverse Effect
on the Company and the Subsidiaries, taken as a whole).
(d) Capital Stock. The authorized capital stock of the Company
consists of (i) 15,000,000 shares of Common Stock, par value $1.00 per share, of
which an aggregate of 5,682,287 shares of Common Stock were issued and
outstanding as of the close of business on January 14, 2000 and of which
4,135,094 shares of Common Stock were reserved for issuance upon the conversion
of the Series B Preferred Stock as of the close of business on January 14, 2000,
and (ii) 1,000,000 shares of preferred stock, $1.00 par value per share, of
which (1) 100,000 shares of $21.25 Convertible Exchangeable Preferred Stock (the
"$21.25 Preferred Stock") have been designated and 99,990 shares of which are
issued and outstanding as of the close of business on January 14, 2000; (2)
200,000 shares of Series A Junior Participating Preferred Stock have been
designated and none of which are issued or outstanding, as of the close of
business on January 14, 2000; and (3) 500,000 shares of Series B Cumulative
Convertible Preferred Stock (the "Series B Preferred Stock") have been
designated and 200,184 of which are issued and outstanding, as of the close of
business on January 14, 2000. As of the close of business on January 14, 2000,
there were outstanding under the Company's 1982 Stock Option Plan and certain
other Options granted on January 17, 1997, January 19, 1998, December 10, 1998
and January 4, 1999 (collectively, the "Company Stock Plans") options to acquire
an aggregate of 696,500 shares of Common Stock (subject to adjustment on the
terms set forth therein). As of the close of business on January 14, 2000, the
Company had no shares of Common Stock reserved for issuance, other than 916,610
shares of Common Stock reserved for issuance upon exercise of outstanding stock
options issued pursuant to the Company Stock Plans, 662,186 shares reserved for
issuance upon the conversion of the $21.25 Preferred Stock, 4,135,094 shares
reserved for issuance upon the conversion of the Series B Preferred Stock, and
420,000 shares reserved for issuance upon exercise of stock purchase warrants
(the "Stock Purchase Warrants"). As of the close of business on January 14,
2000, there were outstanding under the Company Stock Plans no shares of
restricted stock and no shares of Common Stock reserved for issuance of
restricted stock. All of the outstanding shares of Common Stock, $21.25
Preferred Stock and Series B Preferred Stock have been duly authorized and
validly issued, and are fully paid and nonassessable. There are no preemptive or
similar rights on the part of any holders of any class of securities of the
Company or of any of its Subsidiaries. Except for the Common Stock, the $21.25
Preferred Stock, the Series B Preferred Stock and the Stock Purchase Warrants,
as set forth above, the Company has outstanding no bonds, debentures, notes or
other obligations or securities the holders of which have the right to vote (or
are convertible or exchangeable into or exercisable for securities having the
right to vote) with the stockholders of the Company on any matter. Except as set
forth above and in the Rights Agreement, there are no securities convertible
into or exchangeable for, or options, warrants, calls, subscriptions, rights,
contracts, commitments, arrangements or understandings of any kind to which the
Company or any of its Subsidiaries is a party or by which any of them is bound
obligating the Company or any of its Subsidiaries contingently or otherwise to
issue, deliver or sell, or cause to be issued,
9
<PAGE> 13
delivered or sold, additional shares of capital stock or other voting securities
of the Company or of any of its Subsidiaries. Except for the Rights Agreement,
there are no outstanding Contracts of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of the
Company or of any of its Subsidiaries. Except for shares of Series B Preferred
Stock and shares to be issued in connection with this Agreement, all securities
of the Company have been registered under the Securities Act and applicable
state securities and blue sky law, or have been issued in reliance on an
exemption therefrom. Since January 14, 2000, the Company has not redeemed or
otherwise acquired any shares of its capital stock or issued any capital stock
(except upon exercise of options issued or agreed to be issued prior to the date
hereof under a Company Stock Plan and for payment of dividends to the holders of
Series B Preferred Stock) or any option, warrant or right relating thereto.
(e) Subsidiaries. Exhibit 21 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 as filed with the SEC (the
"Annual Report") is a true, accurate and correct statement of all of the
information required to be set forth in Exhibit 21 by the regulations of the SEC
as of the date of such report and as of the date of this Agreement. Each
Subsidiary has been duly incorporated or organized and is validly existing as a
corporation or other legal entity in good standing under the laws of the
jurisdiction of its incorporation or formation, has the corporate or other power
and authority to own, lease and operate its assets and properties and to conduct
its business as described in the Filed Company SEC Documents and as currently
owned or leased and conducted and is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing (if
applicable) in each jurisdiction in which the conduct of its business or its
ownership, leasing or operation of assets or property requires such
qualification, other than any failure to be so qualified or in good standing as
would not reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole. All of the outstanding capital
stock of each Subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and all capital stock of Subsidiaries owned by the
Company, directly or through Subsidiaries (other than directors' qualifying
shares), are free and clear of any Lien or restriction upon voting or transfer
of any kind (other than the pledge of all of the capital stock of the
Subsidiaries pursuant to the Credit Facility and such transfer restrictions as
may exist under federal and state securities laws), and there are no rights
granted to or in favor of any third party (whether acting in an individual,
fiduciary or other capacity) other than the Company to acquire any such capital
stock, any additional capital stock or any other securities of any Subsidiary.
(f) SEC Filings. The Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC under the Securities Act and the Exchange Act since January 1, 1993 and
up to the date hereof and it will file all such documents required to be filed
before the Closing (the "Filed Company SEC Documents"). As of its filing date,
each Filed Company SEC Document filed, as amended or supplemented, if
applicable, (i) complied in all respects with the applicable requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
thereunder and (ii) did not, at the time it was filed, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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<PAGE> 14
(g) Financial Statements. Each of the consolidated financial
statements (including, in each case, any related notes and schedules) contained
or to be contained in the Filed Company SEC Documents (i) complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (ii) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q
under the Exchange Act) and (iii) fairly presented the consolidated financial
position of the Company and its Subsidiaries as of the respective dates thereof
and the consolidated results of its operations, stockholders' equity and cash
flows, in each case for the respective periods indicated, consistent with the
books and records of the Company and its Subsidiaries, except that the unaudited
interim financial statements are subject to normal year-end adjustments which
are not expected to be material in amount. The unaudited balance sheet of the
Company as of September 30, 1999 is referred to herein as the "Balance Sheet."
(h) Undisclosed Liabilities. Except (i) as disclosed in the
Filed Company SEC Documents or in any Section of the Disclosure Schedule, and,
in either case, reserved for in the Balance Sheet, and (ii) normal and recurring
liabilities incurred since the date of the Balance Sheet in the ordinary course
of business consistent with prior practices and not prohibited by the
Transaction Documents, the Company and its Subsidiaries do not have any
liabilities or obligations or any nature, whether known or unknown, whether
absolute, accrued, contingent or otherwise, and whether due or to become due,
which would reasonably be expected to have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole.
(i) Absence of Certain Events and Changes. Except as otherwise
contemplated by the Transaction Documents, since January 1, 1999, the Company
and its Subsidiaries have conducted their business in the ordinary course,
consistent with past practices, and there has not been any event, change or
development which would reasonably be expected to have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
(j) Compliance with Applicable Laws. Each of the Company and
its Subsidiaries is in compliance with all statutes, laws, regulations, rules,
judgments, orders and decrees of all Governmental Entities applicable to it, and
neither the Company nor any of the Subsidiaries has received any notice alleging
noncompliance except, with reference to all the foregoing, where the failure to
be in compliance would not reasonably be expected to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole. Each of the
Company and its Subsidiaries has all Permits that are required in order to
permit it to carry on its business as it is presently conducted, except where
the failure to have such Permits would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
All such Permits are in full force and effect and the Company and its
Subsidiaries are in compliance with the terms of such Permits, except where the
failure to be in full force and effect or in compliance would not reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. This Section 3.01(j) does not relate to employee benefits
matters (for which Section 3.01(o) is applicable), environmental
11
<PAGE> 15
matters (for which Section 3.01(p) is applicable) or tax matters (for which
Section 3.01(n) is applicable).
(k) Title to Assets. The Company and the Subsidiaries have
title to all material properties (real and personal) owned by the Company and
the Subsidiaries which are necessary for the conduct of the business of the
Company and the Subsidiaries as described in the Filed Company SEC Documents and
as currently conducted, free and clear of any Lien that would reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. To the Company's Knowledge, all material properties held under
lease by the Company or the Subsidiaries are held under valid, subsisting and
enforceable leases. This Section 3.01(k) does not relate to Intellectual
Property (for which Section 3.01(s) is applicable).
(l) Litigation. There are no civil, criminal or administrative
actions, suits or proceedings pending or, to the Knowledge of the Company,
threatened, against the Company or any of its Subsidiaries that, if adversely
determined, would reasonably be expected to have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole. There are no outstanding
judgments, orders, decrees, or injunctions of any Governmental Entity against
the Company or any of its Subsidiaries that, would be reasonably expected to
have a Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
(m) Contracts. All of the Company's Contracts that are
required to be described in the Filed Company SEC Documents or to be filed as
exhibits thereto are described in the Filed Company SEC Documents or filed as
exhibits thereto and are legal, valid, binding and in full force and effect
except to the extent that any failure to be enforceable would not reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. There does not exist under any Contract any violation, breach
or event of default, or event or condition that, after notice or lapse of time
or both, would constitute a violation, breach or event of default thereunder, on
the part of the Company or any of the Subsidiaries or, to the Knowledge of the
Company, any other Person, other than such violations, breaches or events of
default as would not reasonably be expected to have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole. The enforceability of all
Contracts will not be affected in any manner by the execution, delivery or
performance of any of the Transaction Documents or the consummation of the
transactions contemplated thereby, and no Contract contains any change in
control or other terms or conditions that will become applicable or inapplicable
as a result of the consummation of the transactions contemplated hereby or
thereby except for such effects as would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(n) Taxes.
(i) (A) All Tax Returns required to be filed by or on
behalf of each of the Company and the Subsidiaries have been
filed; (B) all such Tax Returns filed are complete and
accurate in all material respects, and all Taxes (whether or
not shown to be due on such Tax Returns) have been paid; (C)
neither the Company nor any of the Subsidiaries is currently
the beneficiary of any
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<PAGE> 16
extension of time within which to file any such Tax Return;
(D) no written claim (other than a claim that has been finally
settled) has been made by a taxing authority that the Company
or any of the Subsidiaries is subject to an obligation to file
Tax Returns or to pay or collect Taxes imposed by any
jurisdiction in which such entity does not file Tax Returns or
pay or collect Taxes; and (E) all material assessments for
Taxes due with respect to completed and settled examinations
or concluded litigation have been paid. As used in this
Agreement, "Taxes" shall include all federal, state, local and
foreign income, franchise, property, sales, excise and other
taxes, tariffs or governmental charges of any nature
whatsoever, including interest and penalties, and additions
thereto; and "Tax Returns" shall mean all federal, state,
local and foreign tax returns, declarations, statements,
reports, schedules, forms and information returns relating to
Taxes.
(ii) The Company and each of the Subsidiaries has
duly and timely withheld all Taxes required to be withheld in
connection with its business and assets, and such withheld
Taxes have been either duly and timely paid to the proper
governmental authorities or properly set aside in accounts for
such purpose.
(iii) (A) Neither the Company nor any of the
Subsidiaries is a party to or bound by or has any obligation
under any Tax allocation, sharing, indemnification or similar
agreement or arrangement; and (B) neither the Company nor any
of the Subsidiaries is or has been at any time a member of any
group of companies filing a consolidated, combined or unitary
income tax return.
(iv) (A) All taxable periods of the Company and each
of the Subsidiaries ending on or before December 31, 1996 are
closed or no longer subject to audit; (B) neither the Company
nor any the Subsidiaries is currently under audit by any
taxing authority; (C) no waiver of the statute of limitations
is in effect with respect to any taxable year of the Company
or any of the Subsidiaries; and (D) correct and complete
copies of all income Tax Returns, examination reports and
statements of deficiencies assessed against or agreed to by
the Company or any Subsidiary since January 1, 1993 have been
made available to the Purchasers for their review.
(o) Employee Benefit Plans and Related Matters; ERISA.
(i) Schedule 3.01(o) contains a complete and accurate
list of all Company Plans and Company Benefit Arrangements.
Schedule 3.01(o) specifically identifies all Company Plans (if
any) that are Qualified Plans.
(ii) With respect, as applicable, to Benefit Plans
and Benefit Arrangements:
(A) the Company has made available true,
correct, and complete copies of the following documents with
respect to all Company Plans
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<PAGE> 17
and Company Benefit Arrangements to the Purchasers: (1) all
current plan or arrangement documents, including but not
limited to trust agreements, insurance policies, service
agreements and formal and informal amendments to each; (2) the
most recent Forms 5500 or 5500C/R and any attached financial
statements and related actuarial reports, and those for the
prior three years; (3) the last Internal Revenue Service
("IRS") determination letter, the last IRS determination
letter that covered the qualification of the entire plan (if
different), and the materials submitted to obtain those
letters; (4) summary plan descriptions and summaries of
material modifications, and any prospectuses that describe the
Company Benefit Arrangements or Company Plans; (5) written
descriptions of all non-written agreements relating to any
such plan or arrangement; (6) all reports submitted within the
three years preceding the date of this Agreement by
third-party administrators, actuaries, investment managers,
consultants, or other independent contractors (other than
participant statements); (7) all notices that the IRS,
Department of Labor or any other governmental agency or entity
issued to the Seller within the four years preceding the date
of this Agreement; (8) employee manuals or handbooks
containing personnel or employee relations policies; (9) the
most recent quarterly listing of workers' compensation
claims and a schedule of workers' compensation claims of the
Seller for the last three fiscal years; and (10) any other
documents Purchasers has requested;
(B) the Qualified Plans qualify under Section
401(a) of the Code, and nothing has occurred with respect to
the operation of any Qualified Plan that could cause the
imposition of any liability, lien, penalty, or tax under ERISA
or the Code; each Company Plan and each Company Benefit
Arrangement has been maintained in accordance with its
constituent documents and with all applicable provisions of
domestic and foreign laws, including federal and state
securities laws and any reporting and disclosure requirements;
with respect to each Company Plan, no transactions prohibited
by Code Section 4975 or ERISA Section 406 and no breaches of
fiduciary duty described in ERISA Section 404 have occurred,
except to the extent that such transaction or breach would not
have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole; and, to the Company's
Knowledge, no such transaction or breach has occurred; and no
Company Plan, other than the Company's employee stock
ownership plan, contains any security issued by any Related
Employer;
(C) with respect to each Pension Plan, (1) no Related
Employer has terminated or withdrawn (partially or fully) or
sought a funding waiver, and no facts exist that could
reasonably be expected to cause such actions; (2) no
accumulated funding deficiency (under Code Section 412) exists
or has existed; (3) no reportable event (as defined in ERISA
Section 4043) has occurred; (4) all costs have been provided
for on the basis of consistent methods in accordance with
sound actuarial assumptions and practices; (5) the assets, as
of its last valuation date, exceeded its "Benefit Liabilities"
(as defined in ERISA Section 4001(a)(16)); (6) since the last
valuation date, there have been no
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<PAGE> 18
amendments or changes to increase the amounts of benefits and,
to the Knowledge of the Company, nothing has occurred that
would reduce the excess of assets over benefit liabilities in
such plans; and (7) no Related Employer has incurred liability
(other than for routine contributions not yet due) with
respect to any Multiemployer Plan nor terminated or withdrawn
(partially or fully) from any such Plan, and no facts exist
that could reasonably be expected to cause such result or
actions;
(D) there are no pending claims (other than
routine benefit claims) or lawsuits that have been asserted or
instituted by, against, or relating to, any Company Plans or
Company Benefit Arrangements, nor is there any basis for any
such claim or lawsuit. No Company Plans or Company Benefit
Arrangements are or have been under audit or examination (nor
has notice been received of a potential audit or examination)
by any domestic or foreign governmental agency or entity, and
no matters are pending with respect to any Company Plan under
the IRS's Employee Plans Compliance Resolutions System or any
successor or predecessor program;
(E) no Company Plan or Company Benefit
Arrangement contains any provision or is subject to any law
that would accelerate or vest any benefit or require
severance, termination or other payments or trigger any
liabilities as a result of the transactions this Agreement
contemplates; no Related Employer has declared or paid any
bonus or incentive compensation related to the transactions
this Agreement contemplates; and no payments under any Company
Plan or Company Benefit Arrangement would, individually or
collectively, be nondeductible under Code Section 280G;
(F) all reporting, disclosure, and notice
requirements of ERISA and the Code have been satisfied in all
material respects with respect to each Company Plan and each
Company Benefit Arrangement;
(G) each Related Employer has paid all
amounts it is required to pay as contributions to the Company
Plans as of the date of the Balance Sheet; all benefits
accrued under any unfunded Company Plan or Company Benefit
Arrangement will have been paid, accrued, or otherwise
adequately reserved in accordance with GAAP as of the date of
the Balance Sheet; and all monies withheld from employee
paychecks with respect to Company Plans have been transferred
to the appropriate plan within 30 days of such withholding;
(H) to the Knowledge of the Company, no
statement, either written or oral, has been made by the
Related Employers to any person with regard to any Company
Plan or Company Benefit Arrangement that was not in accordance
with the Company Plan or Company Benefit Arrangement and that
would involve a material increase in expense or liability
under such plan or arrangement;
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<PAGE> 19
(I) the Related Employers have no liability
with respect to any Benefit Plan that should have been
sponsored or maintained by any ERISA Affiliate;
(J) all group health plans of the Related
Employers materially comply with the requirements of Part 6 of
Title I of ERISA ("COBRA"), Code Section 5000, and the Health
Insurance Portability and Accountability Act; the Related
Employers have no liability under or with respect to COBRA for
their own actions or omissions or those of any predecessor;
the Related Employers' voluntary employee beneficiary
association, if any, is exempt from tax and complies with all
requirements applicable to it; no employee or former employee
(or beneficiary of either) of a Related Employer is entitled
to receive any benefits, including, without limitation, death
or medical benefits (whether or not insured) beyond retirement
or other termination of employment , other than as applicable
law requires, and Seller has provided its method and
supporting documentation for any accounting charge it or the
Related Employers have calculated for such benefits;
(iii) Schedule 3.01(o) hereto contains the most
recent quarterly listing of workers' compensation claims and a
schedule of workers' compensation claims of the Company for
the last three (3) fiscal years.
(p) Environmental Matters.
(i) Hazardous Material. To the Knowledge of the
Company, no Hazardous Material has been released in, on or
under any property (including the land and the improvements,
ground water and surface water thereof) that the Company has
at any time owned, operated or leased. Schedule 3.01(p)
identifies all known underground and aboveground storage
tanks, and the capacity, age, and contents of such tanks,
located on real property owned or leased by the Company.
Except as listed on Schedule 3.01(p), no underground storage
tanks are currently located under any property owned, operated
or leased by the Company.
(ii) Hazardous Materials Activities. The Company has
not transported, stored, used, manufactured, disposed of or
released, or exposed its employees or others to, Hazardous
Materials in violation of any Environmental Law in effect on
or before the Closing Date, nor has the Company disposed of,
transported, sold, or manufactured any product containing a
Hazardous Material (collectively, "Company Hazardous Materials
Activities") in violation of any Environmental Law in effect
prior to or as of the date hereof and the Closing.
(iii) Permits. The Company currently holds all
environmental and health approvals, permits, licenses,
clearances and consents (the "Environmental Permits")
necessary for the conduct of the Company's Hazardous Material
Activities and other business of the Company as such
activities and business are currently being conducted. All
Environmental Permits are in full
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force and effect. The Company (x) is in compliance in all
material respects with all terms and conditions of the
Environmental Permits and (y) is in compliance in all material
respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules
and timetables contained in the Environmental Laws. To the
Company's Knowledge, there are no circumstances that may
prevent such compliance in the future. Schedule 3.01(p)
includes a listing and description of all Environmental
Permits currently held by the Company.
(iv) Environmental Liabilities. No action,
proceeding, revocation proceeding, amendment procedure, writ,
injunction or claim is pending, or, to the Knowledge of the
Company, threatened against the Company concerning any
Environmental Permit, Hazardous Material or any Company
Hazardous Materials Activity. There are no past or present
actions, activities, circumstances, conditions, events, or
incidents that are reasonably likely to involve the Company or
any of its Subsidiaries (or any person or entity whose
liability the Company or any of its Subsidiaries has retained
or assumed, either by contract or operation of law) in any
litigation under the Environmental Laws, or impose upon the
Company or any of its Subsidiaries (or any person or entity
whose liability the Company or any of its Subsidiaries has
retained or assumed, either by contract or operation of law)
any liability under the Environmental Laws material to the
Company and its Subsidiaries on a consolidated basis.
(v) Environmental Subsidiary. As to the
Environmental Subsidiary, in addition to the other
representations and warranties contained in this 3.01(p):
(A) The Environmental Subsidiary is not
listed as the generator of any Hazardous Material on any waste
manifest or other document prepared pursuant to the
Environmental Laws or by contract, and the Environmental
Subsidiary has not assumed, under the Environmental Laws or by
contract, the responsibilities or liabilities of the generator
of any Hazardous Material;
(B) To the Knowledge of the Company, the
Environmental Subsidiary has not performed any remedial action
taken pursuant to the Environmental Laws, where the remedial
action is not, or it is alleged in writing by any Person or
entity that the remedial action is not, constructed and
operating in accordance with the Environmental Laws or
contract; and
(C) There are no claims, actions, causes of
action, or other written notices pending or, to the Company's
Knowledge, threatened against the Environmental Subsidiary
under the Environmental Laws or contract, arising from the
Environmental Subsidiary's provision of materials or services
to any Person or entity, that are not subject to coverage
under the Environmental Subsidiary's insurance policies,
except where such claims, actions, causes of
17
<PAGE> 21
action or other written notice will not have a Material
Adverse Effect on the Environmental Subsidiary.
(q) Takeover Law. The Company has taken all action
necessary to ensure that the provisions of Chapter 110F of the Massachusetts
General Laws will not be applicable to Purchasers or their Affiliates as a
result of the transactions contemplated by the Transaction Documents.
(r) Status of Shares. Assuming the Stockholder
Approvals are obtained, the Shares to be issued at the Closing will have been
duly authorized by all necessary corporate action on the part of the Company,
and at Closing such Shares will have been validly issued and, assuming payment
therefor has been made, will be fully paid and nonassessable, and the issuance
of such Shares will not be subject to preemptive rights of any other stockholder
of the Company. Assuming the Stockholder Approvals have been obtained, the
Shares will be eligible for listing on the American Stock Exchange subject only
to notice of issuance.
(s) Intellectual Property.
(i) The Intellectual Property that is
owned by the Company and its Subsidiaries (the "Owned
Intellectual Property") constitutes all of the Intellectual
Property used, intended to be used or held for use in
connection with, necessary for the conduct of, or otherwise
material to the Company and the Subsidiaries, except for
Intellectual Property subject to written or oral licenses,
agreements or arrangements pursuant to which the use of
Intellectual Property by any Company or any Subsidiary is
permitted by any Person (the "Intellectual Property Licenses"
and, together with the Owned Intellectual Property, the
"Company Intellectual Property"). The Owned Intellectual
Property is owned free from any Liens (other than Permitted
Liens). All material Intellectual Property Licenses are in
full force and effect in accordance with their terms, and are
free and clear of any Liens (other than Permitted Liens).
Immediately after the Closing, the Company and the
Subsidiaries will own or have the right to use all the Company
Intellectual Property, in each case free from Liens (except
for Permitted Liens incurred in the ordinary course of
business) and on the same terms and conditions as in effect
prior to the Closing.
(ii) To the knowledge of the Company, the
conduct of the business of the Company and its Subsidiaries
does not infringe or conflict with the rights of any third
party in respect of any Intellectual Property. To the
Knowledge of the Company, none of the Company Intellectual
Property is being infringed by any third party. There is no
claim or demand of any Person pertaining to, or any proceeding
which is pending or, to the Knowledge of the Company,
threatened, that challenges the rights of the Company or any
of the Subsidiaries in respect of any Company Intellectual
Property, or that claims that any default exists under any
Intellectual Property License. None of the Company
Intellectual Property is subject to any outstanding order,
ruling, decree, judgment
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<PAGE> 22
or stipulation by or with any court, tribunal, arbitrator, or
other Governmental Entity adverse to the Company.
(iii) The Owned Intellectual Property has
been duly registered with, filed in or issued by, as the case
may be, the appropriate filing offices, domestic or foreign,
to the extent necessary or desirable to ensure usual and
customary protection for Intellectual Property in the relevant
jurisdiction under any applicable law, and the same remain in
full force and effect. The Company and the Subsidiaries have
taken all necessary actions to ensure usual and customary
protection in the relevant jurisdiction of the Company
Intellectual Property (including maintaining the secrecy of
all confidential Intellectual Property) under any applicable
law or any Contract.
(t) Guarantees. Section 3.01(t) of the Disclosure
Schedule sets forth a description of any obligations or liabilities of any
person other than the Company or its Subsidiaries that are guaranteed by or
subject to a contingent obligation of the Company or any of its Subsidiaries.
(u) Labor Matters. With respect to employees of and
service providers to the Related Employers:
(i) the Related Employers are complying and
have complied in all material respects with all applicable
domestic and foreign laws respecting employment and employment
practices, terms and conditions of employment and wages and
hours, including without limitation any such laws respecting
employment discrimination, workers' compensation, family and
medical leave, the Immigration Reform and Control Act, and
occupational safety and health requirements, and no claims or
investigations are pending or, to the Knowledge of the
Company, threatened with respect to such laws, either by
private individuals or by governmental agencies;
(ii) no Related Employer is or has been
engaged in any unfair labor practice, and there is not now,
nor within the past three years has there been, any unfair
labor practice complaint against any Related Employer pending
or, to the Knowledge of the Company, threatened, before the
National Labor Relations Board or any other comparable foreign
or domestic authority or any workers' council;
(iii) no labor strike, lock-out, slowdown, or
work stoppage is or has been, within the last three years,
pending or, to the Knowledge of the Company, threatened
against or directly affecting any Related Employer; and
(iv) all persons who are or were performing
services for any Related Employer and are or were classified
as independent contractors do or did satisfy and have
satisfied the requirements of law to be so classified, and the
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<PAGE> 23
appropriate Related Employer has fully and accurately reported
their compensation on IRS Forms 1099 when required to do so.
(v) Brokers or Finders. Other than Houlihan, no agent, broker,
investment banker or other firm is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by the Transaction Documents.
(w) Disclosure. To the Knowledge of the Company, no
representation or warranty by the Company contained in this Agreement or any of
the other Transaction Documents, or in any certificate to be furnished by or on
behalf of the Company pursuant hereto or thereto, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein, in light of
the circumstances under which they were made, not misleading.
(x) Opinion of Independent Investment Banking Firm; Special
Committee. The Special Committee of the Board (the "Special Committee") has
obtained an opinion from Houlihan Lokey Howard & Zukin Capital ("Houlihan"), in
a form satisfactory to the Special Committee, that the financial terms of the
transactions contemplated by the Transaction Documents are fair to the holders
of the Common Stock from a financial point of view. The Special Committee has
recommended the execution and performance of this Agreement to the full Board.
(y) Year 2000. The disclosure as to Year 2000 Compatibility
issues in the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1999, is true and correct in all material respects and does not
omit to state a material fact necessary to make the statements contained therein
not misleading.
(z) No Illegal or Improper Transactions. Neither the Company
nor any Subsidiary has, nor has any director, officer, employee, agent or
affiliate of the Company or any Subsidiary, directly or indirectly, used funds
or other assets of the Company or any Subsidiary, or made any promise or
undertaking in such regard, for (i) illegal contributions, gifts, entertainment
or other expenses relating to political activity; (ii) illegal payments to or
for the benefit of governmental officials or employees, whether domestic or
foreign; (iii) illegal payments to or for the benefit of any Person, or any
director, officer, employee, agent, affiliate or representative thereof; or (iv)
the establishment or maintenance of a secret or unrecorded fund; and, to the
Knowledge of the Company, there have been no false or fictitious entries made in
the books or records of the Company or any Subsidiary.
(aa) Insurance.
(i) All insurance policies to which the
Company or any of the Subsidiaries is a party or that provide
coverage to any director or officer of the Company or of any
of the Subsidiaries (A) are valid, outstanding, and
enforceable, (B) are issued by an insurer that, to the
Knowledge of the Company, is financially sound and reputable,
(C) taken together provide adequate insurance
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for the properties, assets and business of the Company and the
Subsidiaries for all risks normally insured against by a
Person carrying on the same or similar business or businesses,
(D) comply with the insurance requirements of all laws and
contracts to which the Company and any of the Subsidiaries is
a party or by which it is bound, except where such failures to
so comply would not be reasonably likely to have a Material
Adverse Effect on the Company and the Subsidiaries, taken as a
whole, and (E) do not provide for any retrospective premium
adjustment or other experience-based liability on the part of
the Company or any of the Subsidiaries.
(ii) Neither the Company nor any Subsidiary
has received any refusal of coverage or any notice that a
defense will be afforded with reservation of rights, or any
notice of cancellation or any other indication that any
insurance policy is no longer in full force or effect or will
not be renewed or that the issuer of any policy is not willing
or able to perform its obligations thereunder, except where
such refusals, failures to renew or cancellations would not be
reasonably likely to have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole.
(iii) The Company and each of the
Subsidiaries has paid all premiums due with respect to all
periods up to and including the date hereof and has otherwise
performed all of its obligations under each policy to which
such Person is a party or that provides coverage to such
Person or any officers or directors thereof, except where the
failure to do so would not be reasonably likely to have a
Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole.
(iv) The Company and each Subsidiary has
given notice to the insurer of all material claims that may be
insured thereby.
SECTION 3.02 Representations and Warranties of TSC. TSC
represents and warrants as follows:
(a) Organization. TSC is a corporation validly existing and in
good standing under the laws of the jurisdiction of its organization, with all
requisite corporate power and authority to own, lease and operate its assets and
properties and to conduct its business as now being conducted.
(b) Corporate Authority. TSC has (or will have at the time of
such act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a party
and to consummate the transactions contemplated thereby. The execution, delivery
and performance of each Transaction Document by TSC and the consummation by TSC
of the transactions contemplated hereby and thereby have been duly authorized
(or will have been duly authorized at the time of such act) and no other
corporate proceedings on the part of TSC are necessary to authorize any
Transaction Document or for TSC to consummate the transactions so contemplated.
Each Transaction Document to
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which TSC is or will be a party is, or when executed and delivered will be, a
valid and binding agreement of such party, enforceable against TSC in accordance
with the terms thereof, assuming that each Transaction Document to which TSC is
a party is a valid and binding agreement of the Company and each other Purchaser
(as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
TSC of each Transaction Document to which it is or will be a
party or the consummation by TSC of the transactions
contemplated thereby (A) will not result - in a violation or
breach of its articles or certificate of incorporation or
by-laws (or other organizational documents) or (B) subject to
the governmental filings and other matters referred - to in
clause (ii) below, will not result in a violation or breach of
(or give rise to any right of termination, revocation,
cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice or
lapse of time or both) under, or result in the creation of any
Lien upon any of the properties or assets of TSC or the
Company and its Subsidiaries under any judgment, order,
decree, statute, law, regulation or rule applicable to TSC.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to TSC in connection with the
execution, delivery or performance by TSC of each Transaction
Document to which it is or will be a party or the consummation
by TSC of the transactions contemplated hereby and thereby
(except where the failure to obtain such consents, approvals,
orders or authorizations, or to make such registrations,
declarations, filings or agreements would not have a Material
Adverse Effect on TSC).
(d) Acquisition for Investment. TSC is acquiring the Shares
being purchased by it for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and TSC
has no present intention or plan to effect any distribution of Shares; provided
that the disposition of TSC's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the Registration
Rights Agreement. TSC is an "Accredited Investor" within the meaning of Rule
501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from TSC in connection with any of the transactions
contemplated by the Transaction Documents.
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(f) Proxy Statement. The information to be supplied by TSC for
inclusion in the Proxy Statement shall not, on the date the Proxy Statement (or
any amendment thereof or supplement thereto) is first mailed to stockholders of
the Company and at the time of the Stockholder Meeting, contain any statement
which, at such time and in light of the circumstances under which it shall be
made, is false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make such statements made in Proxy
Statement not false or misleading. If at any time prior to Stockholder Meeting
any event relating to TSC or any of its Affiliates, officers or directors should
be discovered by TSC which should be set forth in a Supplement to the Proxy
Statement, TSC shall promptly inform the Company.
SECTION 3.03 Representations and Warranties of National Union. National
Union represents and warrants as follows:
(a) Organization. National Union is a corporation validly
existing and in good standing under the laws of the jurisdiction of its
organization, with all requisite power and authority to own, lease and operate
its properties and to conduct its business as now being conducted.
(b) Authority. National Union has (or will have at the time of
such act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a party
and to consummate the transactions contemplated thereby. The execution, delivery
and performance of each Transaction Document by National Union and the
consummation by National Union of the transactions contemplated hereby and
thereby have been duly authorized (or will have been duly authorized at the time
of such act) and no other proceedings on the part of National Union are
necessary to authorize any Transaction Document or for National Union to
consummate the transactions so contemplated. Each Transaction Document to which
National Union is or will be a party is, or when executed and delivered will be,
a valid and binding agreement of such party, enforceable against National Union
in accordance with the terms thereof, assuming that each Transaction Document to
which National Union is a party is a valid and binding agreement of the Company
and each other Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
National Union of each Transaction Document to which it is or
will be a party or the consummation by National Union of the
transactions contemplated thereby (A) will not result in a
violation or breach of its articles or certificate of
incorporation or by-laws (or other organizational documents)
or (B) subject to the governmental filings and other matters
referred to in clause (ii) below, will not result in a
violation or breach of (or give rise to any right of
termination, revocation, cancellation or acceleration under or
increased payments under), or constitute a default (with or
without due notice or lapse of time or both) under, or result
in the creation of any Lien upon any of the properties or
assets of National Union or the Company and its Subsidiaries
under any judgment, order, decree, statute, law, regulation or
rule applicable to National Union.
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(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to National Union in
connection with the execution, delivery or performance by
National Union of each Transaction Document to which it is or
will be a party or the consummation by National Union of the
transactions contemplated hereby and thereby (except where the
failure to obtain such consents, approvals, orders or
authorizations, or to make such registrations, declarations,
filings or agreements would not have a Material Adverse Effect
on National Union).
(d) Acquisition for Investment. Except as contemplated by
Section 9.07, National Union is acquiring the Shares being purchased by it for
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof, and National Union has no present
intention or plan to effect any distribution of Shares; provided that the
disposition of National Union's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the Registration
Rights Agreement. National Union is an "Accredited Investor" within the meaning
of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from National Union in connection with any of the
transactions contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by
National Union for inclusion in the Proxy Statement shall not, on the date the
Proxy Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders of the Company and at the time of the Stockholder Meeting,
contain any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
such statements made in Proxy Statement not false or misleading. If at any time
prior to Stockholder Meeting any event relating to National Union or any of its
Affiliates, officers or directors should be discovered by National Union which
should be set forth in a Supplement to the Proxy Statement, National Union shall
promptly inform the Company.
SECTION 3.04 Representations and Warranties of O&G. O&G represents and
warrants as follows:
(a) Organization. O&G is a corporation validly existing and in
good standing under the laws of the jurisdiction of its organization, with all
requisite power and authority to own, lease and operate its properties and to
conduct its business as now being conducted.
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(b) Authority. O&G has (or will have at the time of such act)
the requisite corporate or other power and authority to execute, deliver and
perform each Transaction Document to which it is or will be a party and to
consummate the transactions contemplated thereby. The execution, delivery and
performance of each Transaction Document by O&G and the consummation by O&G of
the transactions contemplated hereby and thereby have been duly authorized (or
will have been duly authorized at the time of such act) and no other corporate
proceedings on the part of O&G are necessary to authorize any Transaction
Document or for O&G to consummate the transactions so contemplated. Each
Transaction Document to which O&G is or will be a party is, or when executed and
delivered will be, a valid and binding agreement of such party, enforceable
against O&G in accordance with the terms thereof, assuming that each Transaction
Document to which O&G is a party is a valid and binding agreement of the Company
and each other Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
O&G of each Transaction Document to which it is or will be a
party or the consummation by O&G of the transactions
contemplated thereby (A) will not result in a violation or
breach of its articles or certificate of incorporation or
by-laws (or other organizational documents) or (B) subject to
the governmental filings and other matters referred to in
clause (ii) below, will not result in a violation or breach of
(or give rise to any right of termination, revocation,
cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice or
lapse of time or both) under, or result in the creation of any
Lien upon any of the properties or assets of O&G or the
Company and its Subsidiaries under any judgment, order,
decree, statute, law, regulation or rule applicable to O&G.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to O&G in connection with the
execution, delivery or performance by O&G of each Transaction
Document to which it is or will be a party or the consummation
by O&G of the transactions contemplated hereby and thereby
(except where the failure to obtain such consents, approvals,
orders or authorizations, or to make such registrations,
declarations, filings or agreements would not have a Material
Adverse Effect on O&G).
(d) Acquisition for Investment. O&G is acquiring the Shares
being purchased by it for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and O&G
has no present intention or plan to effect any distribution of Shares; provided
that the disposition of O&G's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the
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Registration Rights Agreement. O&G is an "Accredited Investor" within the
meaning of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from O&G in connection with any of the transactions
contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by O&G for
inclusion in the Proxy Statement shall not, on the date the Proxy Statement (or
any amendment thereof or supplement thereto) is first mailed to stockholders of
the Company and at the time of the Stockholder Meeting, contain any statement
which, at such time and in light of the circumstances under which it shall be
made, is false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make such statements made in Proxy
Statement not false or misleading. If at any time prior to Stockholder Meeting
any event relating to O&G or any of its Affiliates, officers or directors should
be discovered by O&G which should be set forth in a Supplement to the Proxy
Statement, O&G shall promptly inform the Company.
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
COVENANTS AND ADDITIONAL AGREEMENTS
SECTION 5.01 Pre-Closing Activities. From and after the date of this
Agreement until the Closing, each of the Company and Purchasers shall act with
good faith towards each other, and shall use all commercially reasonable efforts
to take or cause to be taken all actions necessary, proper or advisable to
consummate the transactions contemplated by the Transaction Documents and
neither the Company nor any Purchaser will take any action that would prohibit
or materially impair its ability to consummate the transactions contemplated by
the Transaction Documents.
SECTION 5.02 Covenants of the Company. During the period from the date
of this Agreement and continuing until the Closing, the Company agrees as to
itself and the Subsidiaries that, except as provided in Section 5.02 of the
Disclosure Schedule, or to the extent that Purchasers otherwise consent in
writing:
(a) Ordinary Course. The Company will conduct its business in
the ordinary course in substantially the same manner as presently conducted and
the Company will use commercially reasonable efforts to keep available the
services of the current officers and employees and to preserve the relationships
with customers, suppliers and others having business dealings with the Company.
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(b) Other Transactions. The Company will not, nor will it
permit any of the Subsidiaries to, do any of the following (except as otherwise
specifically contemplated herein or in any other Transaction Document):
(i) amend its Articles of Organization,
By-laws or other organizational documents (except for
immaterial amendments to the Articles of Organization or
By-laws of any Subsidiaries, provided such amendments in no
way materially and adversely affect Purchasers or the rights
granted or to be granted to the Purchasers under any
Transaction Document);
(ii) declare or pay any cash or non-cash
dividend or make any cash or non-cash distribution with
respect to any securities of the Company (other than payment
of dividends in kind pursuant to the Series B Preferred
Stock);
(iii) redeem or otherwise acquire any shares
of its capital stock or issue any capital stock (except upon
exercise of options issued or agreed to be issued prior to the
date hereof under a Company Stock Plan) or any option, warrant
or right relating thereto;
(iv) incur any liabilities, obligations or
indebtedness for borrowed money or guarantee any such
liabilities, obligations or indebtedness, other than in the
ordinary course of business consistent with past practice and
as permitted under the Credit Facility;
(v) permit, allow or suffer any assets or
properties of the Company to be subject to any Lien other than
Permitted Liens;
(vi) guarantee or otherwise become
contingently liable for any obligation of any third party
other than in the ordinary course of business;
(vii) make any change in any method of
accounting or accounting practice or policy, except as may be
required by GAAP;
(viii) enter into any agreement or take any
action in violation of the terms of this Agreement or any of
the other Transaction Documents;
(ix) settle any material tax audit, make or
change any tax election or amend any Tax Returns; or
(x) agree, whether in writing or otherwise,
to do any of the foregoing.
(c) Employee Benefits. Except in the ordinary course of
business and consistent with past practice (which shall include normal periodic
performance reviews and related benefit increases and the increases approved at
the December 8, 1999 meeting of the Board of Directors) or pursuant to the
existing terms of any collective bargaining agreement, the Company will not, nor
will it permit any of the Subsidiaries to (i) increase in any manner the
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compensation of any of the officers or other employees of the Company or its
Subsidiaries; (ii) adopt, amend, terminate, or increase liability with respect
to any Company Plan or Company Benefit Arrangement or commit to do so; or (iii)
enter into, or negotiate, any collective bargaining agreement with respect to
employees of the Company or its Subsidiaries except as required by law, in which
case the Company or such Subsidiary shall first notify Purchasers.
SECTION 5.03 HSR. Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties agrees to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective all necessary filings required pursuant to the HSR
Act as soon as commercially practicable after the date of this Agreement, and
shall use their best efforts to obtain the early termination of the waiting
period thereunder, provided that neither the Company nor any Purchaser shall be
required to agree to dispose of or hold separate any material portion of its
business or assets.
SECTION 5.04 [Intentionally Omitted]
SECTION 5.05 Stockholder Approvals; Proxy Statement.
(a) The Company shall call a meeting of its stockholders (the
"Stockholder Meeting") for the purpose, among others, of obtaining stockholder
approvals for: (i) an amendment to the Articles of Organization increasing the
number of authorized shares of Common Stock to at least as many shares of Common
Stock as are necessary to consummate the transaction contemplated hereby and
(ii) the issuance and sale (the "Issuance") of the Shares to Purchasers and the
exchange of the Series B Preferred Stock for shares of Common Stock as
contemplated by Section 6.03(c) (the "Stockholder Meeting Proposals"). The
Stockholder Meeting shall be held as soon as practicable but in no event later
than the Outside Date. For purposes of this Agreement, "Stockholder Approvals"
shall mean, as to clause (i), the affirmative vote of the holders of a majority
of the shares of the Equity Securities entitled to vote thereon and, as to
clause (ii), the affirmative vote of the holders of a Disinterested Majority of
the Equity Securities entitled to vote thereon. Where so required by applicable
Massachusetts law or the Articles of Organization, Stockholder Approvals shall
mean the separate vote of each class of stock entitled to vote thereon.
(b) The Company will prepare and file with the SEC a proxy
statement relating to the Stockholder Meeting (as amended or supplemented and
including documents incorporated by reference therein, the "Proxy Statement")
and shall use its reasonable best efforts to respond to any comments of the SEC
or its staff and to cause the Proxy Statement to be cleared by the SEC. The
Company shall notify Purchasers of the receipt of any comments from the SEC or
its staff and of any request by the SEC or its staff for amendments or
supplements to the Proxy Statement or for additional information and shall
supply Purchasers and their counsel with copies of all correspondence between
the Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Proxy Statement. The Company shall
give Purchasers and their counsel the opportunity to review the Proxy Statement
prior to its being filed with the SEC and shall give Purchasers and their
counsel the opportunity to review all amendments and supplements to the Proxy
Statement and all responses to requests
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for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Purchasers agrees to use
reasonable best efforts, after consultation with the other party hereto, to
respond promptly to all such comments of and requests by the SEC. After the
Proxy Statement has been cleared by the SEC, the Company shall mail the Proxy
Statement to the stockholders of the Company. If at any time prior to the
Stockholder Meeting there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, the Company will prepare and
mail to its stockholders such an amendment or supplement.
(c) The Proxy Statement will not, at the date mailed to the
Company's stockholders and at the date of the Stockholder Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The Proxy
Statement will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder, except that no
representation is made by the Company with respect to statements made therein as
to information concerning Purchasers or their Affiliates supplied in writing by
Purchasers or any of their Affiliates specifically for inclusion in the Proxy
Statement.
(d) Unless this Agreement has been terminated (i) pursuant to
Section 7.01(d)(ii) (based upon a failure of the condition set forth in Section
6.02(d)), or (ii) pursuant to Section 7.01(d)(iii) based upon the existence of a
Superior Transaction Proposal that the Board intends to accept, the Board and
the Special Committee shall recommend that the Company's stockholders approve
the Stockholder Meeting Proposals and the Company shall use its best efforts to
obtain the necessary approvals by its stockholders of the Stockholder Meeting
Proposals.
SECTION 5.06 Stock Exchange Listing. The Company shall use its
commercially reasonable efforts to cause Purchasers to receive, prior to
Closing, assurance from the American Stock Exchange (the "Exchange"), in a form
reasonably satisfactory to the Purchasers, that: (a) in accordance with the
rules of the Exchange, all Shares will be eligible for listing on the Exchange;
and (b) consummation of the transactions contemplated herein or in any other
Transaction Document will not cause any securities of the Company already listed
on the American Stock Exchange to lose their listing privileges.
SECTION 5.07 Transaction Proposals.
(a) For purposes of this Agreement, "Transaction Proposal"
means any inquiry, proposal or offer from any Person (other than a Person that
is an Affiliate of the Purchasers) relating to (i) any purchase or other
acquisition from the Company of assets representing 20% or more of the net
revenues, net income or profits of the Company and its Subsidiaries, taken as a
whole, (ii) any purchase or other acquisition of any class of securities of the
Company for a purchase price in excess of $20 million, or (iii) any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company (or any subsidiary whose business
constitutes 20% or more of the net revenues, net income or assets of the Company
and its subsidiaries, taken as a whole). For purposes of this
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Section 5.07, separate Transaction Proposals by Affiliates or by Persons in a
"group" (as defined in the rules promulgated under Section 13 of the Exchange
Act), as well as separate Transaction Proposals that are adopted by the Company
as part of a plan of financing or capitalizing the Company shall be aggregated
and treated as a single proposal for purposes of determining whether such
proposal or proposals exceed the thresholds set forth in this Section 5.07(a).
(b) At least ten (10) days prior to either (x) accepting any
Transaction Proposal or (y) any change by the Board or the Special Committee in
their respective recommendations concerning the Stockholder Meeting Proposals
(if following the receipt of any Transaction Proposal), the Company shall advise
Purchasers orally and in writing of such Transaction Proposal and the material
terms and conditions of such Transaction Proposal and the identity of the Person
making any such Transaction Proposal. During such ten day period, the Company
shall negotiate in good faith to determine whether Purchasers can or are willing
to make a proposal that is superior to the Transaction Proposal. Subject to
complying with the foregoing provisions of this Section 5.07, the Special
Committee and its representatives and advisors on behalf of the Company may
solicit Transaction Proposals and furnish or cause the Company to furnish
information with respect to the Company and its Subsidiaries to any Person and
may participate in discussions or negotiations regarding any Transaction
Proposal.
SECTION 5.08 Access and Information.
(a) Access. From the date hereof until the Closing (and in any
event subject to the provisions of Section 5.09(a)), the Company shall permit
Purchasers (and their designated representatives) to visit and inspect any of
the properties of the Company and the Subsidiaries, including the books and
records of the Company and the Subsidiaries (and to make extracts and copies
therefrom), and to consult with respect to and discuss the affairs, businesses,
finances, operations and accounts of the Company and the Subsidiaries with the
officers, directors, employees, affiliates and agents of such entities, all at
such reasonable times and as often as Purchasers may reasonably request.
(b) Information. The Company covenants that so long as any
Purchaser owns shares of Common Stock equal in number to at least 5% of the
Shares sold to it on the Closing Date, the Company will deliver to such
Purchaser the following:
(i) As soon as practicable and in any event
within 45 days after the end of each quarterly period (other
than the last quarterly period) in each fiscal year, (A) a
consolidated statement of income and consolidated statements
of changes in financial position and cash flows of the Company
and the Subsidiaries for such quarterly period and for the
period from the beginning of the current fiscal year to the
end of such quarterly period, and (B) a consolidated balance
sheet of the Company and the Subsidiaries as at the end of
such quarterly period, setting forth in each case, in
comparative form, figures for the corresponding periods in the
preceding fiscal year and corresponding figures for the budget
for such quarterly period, all in reasonable detail and
certified by an authorized financial officer of the Company,
subject to changes resulting from year-end adjustments;
provided, however, that delivery pursuant to clause (iii)
below of a
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copy of the Quarterly Report on Form 10-Q of the Company for
such quarterly period filed with the SEC shall be deemed to
satisfy the requirements of this clause (i);
(ii) As soon as practicable and in any event
within 120 days after the end of each fiscal year, (A) a
consolidated statement of income and consolidated statements
of changes in financial position and cash flows of the Company
and the Subsidiaries for such year, and (B) a consolidated
balance sheet of the Company and the Subsidiaries as of the
end of such year, setting forth in each case, in comparative
form, corresponding consolidated figures from the preceding
annual audit and corresponding figures for the budget for such
fiscal year, all in reasonable detail together with an opinion
directed to the Company of independent public accountants of
recognized standing selected by the Company; provided,
however, that delivery pursuant to clause (iii) below of a
copy of the Annual Report on Form 10-K of the Company for such
fiscal year filed with the SEC shall be deemed to satisfy the
requirements of this clause (ii);
(iii) Promptly upon transmission thereof,
copies of all financial statements, proxy statements, notices
and reports as it shall send to its public stockholders and
copies of all registration statements (without exhibits),
other than on Form S-8 or any similar successor form, and all
reports which it files with the SEC (or any governmental body
or agency succeeding to the functions of the SEC);
(iv) Promptly upon receipt thereof, copies of
all reports submitted to the Company by independent public
accountants in connection with each annual, interim or special
audit of the books of the Company or any Subsidiary made by
such accountants, including the comment letter submitted by
such accountants to management in connection with their annual
audit; and
(v) With reasonable promptness, such other
financial data as any Purchaser may reasonably request.
SECTION 5.09 Confidentiality and Publicity.
(a) Confidentiality. Each of the Purchasers recognizes and
acknowledges that it has in the past, currently has, and in the future may
possibly have, access to certain confidential information of the Company. Each
Purchaser agrees that it will not disclose confidential information with respect
to the Company to any Person for any purpose or reason whatsoever, except to
authorized representatives of such Purchaser and to counsel and other advisers,
provided, however, that such advisers (other than counsel) agree to the
confidentiality provisions of this subsection 5.09(a), unless (i) such
information is publicly known or becomes known to the public generally through
no fault of any of the Purchasers, (ii) is independently developed by the
Purchasers without the use of the Company's confidential information, (iii) is
disclosed without similar restrictions to a third party by the Company or a
Subsidiary, or (iv) disclosure is required by law (including securities law
disclosure requirements and stock
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exchange rules), or the order of any governmental authority under color of law,
or to enforce its rights under this Agreement; provided, however, that prior to
disclosing any information pursuant to this Section 5.09(a), a Purchaser shall,
if reasonably possible, give prior written notice thereof to the Company and
provide the Company with the opportunity to contest such disclosure.
(b) Publicity. Prior to Closing, the Company and Purchasers
will consult with each other before issuing any press release or otherwise
making any public statements with respect to the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or by
obligations pursuant to any listing agreement with any securities exchange.
SECTION 5.10 Restrictions. Each Purchaser covenants and agrees with the
Company that such Purchaser will not dispose of any of such Purchaser's shares
of the Shares except pursuant to (a) an effective registration statement under
the Act or (b) an applicable exemption from registration under the Act. In
connection with any sale by a Purchaser pursuant to clause (b) of the preceding
sentence, such Purchaser shall furnish to the Company an opinion of counsel
reasonably satisfactory to the Company to the effect that such exemption from
registration is available in connection with such sale.
SECTION 5.11 Further Assurances. Following the Closing Date, the
Company shall, and shall cause each of the Subsidiaries to, from time to time,
execute and deliver such additional instruments, documents, conveyances or
assurances and take such other actions as shall be necessary, or otherwise
reasonably be requested by Purchasers, to confirm and assure the rights and
obligations provided for in this Agreement and the Transaction Documents and
render effective the consummation of the transactions contemplated hereby and
thereby.
SECTION 5.12 Directors' and Officers' Indemnification and Insurance.
(a) The provisions with respect to indemnification that are
set forth in the bylaws of the Company shall not be amended, repealed or
otherwise modified for a period of six years from the Closing Date in any manner
that would affect adversely the rights thereunder of individuals who are or, at
any time prior to the Closing Date, were directors, officers, employees or
agents of Company with respect to claims arising from facts or events that
occurred at or prior to the Closing.
(b) Prior to the Closing, the Company shall have offered each
director of the Company the opportunity to enter into an indemnification
agreement in a form reasonably acceptable to such director (the "Indemnification
Agreements").
(c) For a period of six years after the Closing Date, the
Company shall maintain in effect the directors' and officers' liability
insurance policies maintained by the Company immediately prior to the Closing;
provided, however, that the Company may substitute therefor policies of at least
the same coverage and amounts containing terms and conditions which are not
materially less advantageous with respect to claims arising from facts or events
which occurred at or before the Closing; provided further, however, that, in no
event shall the
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Company be required to expend in any one year in excess of 125% of the annual
premium currently paid by the Company for such coverage, which current premium
amount is set forth on the Disclosure Schedule and if the premium for such
coverage exceeds such amount, the Company shall purchase a policy with the
greatest coverage available for such 125% of the annual premium.
(d) If the Company or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
Person, then and in each such case, proper provision shall be made so that the
successors and assigns of the Company assume the obligations set forth in this
Section 5.12.
(e) The foregoing provisions of Section 5.12 are obligations
of the Company and not of any of the Purchasers.
SECTION 5.13 Shareholders Agreement. Each of the parties agrees (i)
that they will enter into the Shareholders Agreement, (ii) that the Shareholders
Agreement shall not become effective prior to the Closing and (iii) that the
Exchange Agreement to be entered into by and between the Company and holders of
Series B Preferred Stock shall not restrict or impede the parties thereto from
considering or accepting any Superior Transaction Proposal.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 Conditions to Each Party's Obligations. The obligations of
the Company and each Purchaser to consummate the transactions contemplated to
occur at the Closing shall be subject to the satisfaction prior to the Closing
of each of the following conditions, each of which may be waived only if it is
legally permissible to do so:
(a) HSR and Other Approvals. Any applicable waiting period
under the HSR Act relating to the transactions contemplated hereby shall have
expired or been terminated, and all other material authorizations, consents,
orders or approvals of, or regulations, declarations or filings with, or
expirations of applicable waiting periods imposed by, any Governmental Entity
(including, without limitation, any foreign antitrust filing) necessary for the
consummation of the transactions contemplated hereby, shall have been obtained
or filed or shall have occurred.
(b) No Litigation, Injunctions, or Restraints. No statute,
rule, regulation, executive order, decree, temporary restraining order,
investigation, suit, proceeding, preliminary or permanent injunction or other
order shall have been enacted, entered, promulgated, enforced or issued by any
Governmental Entity that presents a substantial risk of the restraint or
prohibition of the transactions contemplated by this Agreement or any of the
Transaction Documents or the obtaining of material damages or other relief from
any one or more of the Purchasers in connection therewith.
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(c) Stockholder Approvals. The Stockholder Approvals have been
obtained.
(d) Management Agreement Amendment. The management agreement
by and among the Company, TSC and Ronald N. Tutor dated January 17, 1997, as
amended on December 23, 1998 and December 31, 1999 (the "Management Agreement
Amendment"), shall be in full force and effect.
SECTION 6.02 Conditions to the Obligations of the Company. The
obligations of the Company to consummate the transactions contemplated to occur
at the Closing shall be subject to the satisfaction or waiver thereof by the
Company prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Purchaser that are qualified as to materiality shall be true
and correct, and those that are not so qualified shall be true and correct in
all material respects, as of the date of this Agreement and as of the time of
the Closing as though made at and as of such time, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date) and the
Company shall have received a certificate signed by an authorized officer of
each Purchaser to such effect.
(b) Performance of Obligations of Purchasers. Each Purchaser
shall have performed or complied in all material respects with all obligations
and covenants required to be performed or complied with by such Purchaser under
this Agreement, and the Company shall have received a certificate signed by the
chief executive officer and chief financial officer of each Purchaser to such
effect.
(c) Closing Deliveries. Purchasers shall have delivered to the
Company on or before the Closing the following:
(i) The Registration Rights Agreement, to be
dated as of the date of the Closing, in substantially the form
of Exhibit 6.02(c)(i), executed by Purchasers;
(ii) The Shareholders Agreement, to be dated
as of the date of the Closing, substantially in the form of
Exhibit 6.02(c)(ii), executed by Purchasers;
(iii) Executed and conformed copies of such
other certificates, letters and documents as the Company may
reasonably request and as are customary for transactions such
as those contemplated by this Agreement;
(iv) $10 million by TSC by wire transfer of
immediately available funds as its share of the Purchase
Price;
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(v) $10 million by O&G by wire transfer of
immediately available funds as its share of the Purchase
Price;
(vi) $20 million by National Union by wire
transfer of immediately available funds as its share of the
Purchase Price; and
(vii) a Certificate of the Secretary or
Assistant Secretary of each of the Purchasers dated as of the
Closing Date certifying: (1) that attached thereto is a true
and complete copy of the By-Laws, or comparable organization
document, of such Purchaser as in effect on the date of such
certification; (2) that attached thereto is a true and
complete copy of all resolutions adopted by the Board of such
Purchaser authorizing the execution, delivery and performance
of the Agreement, and that all such resolutions are in full
force in effect and are all the resolutions adopted in
connection with the transactions contemplated by this
Agreement; (3) that attached thereto is a true and complete
copy of such Purchasers' articles of incorporation, or
comparable organization document, as in effect on the date of
such certification; and (4) to the incumbency and specimen
signature of certain officers of the Company.
(d) Bring Down of Fairness Opinion. The Special Committee
shall have affirmed its recommendation to the Board that the Company execute and
perform this Agreement after the delivery of a "bring down" fairness opinion by
the Special Committee's financial advisor in a form reasonably satisfactory to
the Special Committee as of a date no earlier than three days prior to the
Closing.
SECTION 6.03 Conditions to the Obligations of Purchasers. The
obligations of each Purchaser to consummate the transactions contemplated to
occur at the Closing shall be subject to the satisfaction or waiver thereof
prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement that are qualified as to
materiality shall be true and correct, and those that are not so qualified shall
be true and correct in all material respects, as of the date of this Agreement
and as of the time of the Closing as though made at and as of such time, except
to the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those that are not so qualified shall
be true and correct in all material respects, on and as of such earlier date),
and Purchasers shall have received a certificate signed by the chief executive
officer and chief financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company
shall have performed or complied in all material respects with all obligations
and covenants required to be performed or complied with by the Company under
this Agreement, and Purchasers shall have received a certificate signed by the
chief executive officer and chief financial officer of the Company to such
effect.
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(c) Series B Preferred Stock. Holders of the Series B
Preferred Stock shall have agreed to exchange no less than 100% of the then
outstanding face amount of those securities (including accrued but unpaid
dividends) in exchange for Common Stock at an exchange price of $5.50 per share
of Common Stock. In addition, the holders of the Series B Preferred Stock shall
have approved the amendments, revisions and waivers to the certificate of vote
for the Series B Preferred Stock and the Stock Purchase and Sale Agreement,
dated as of July 24, 1996, by and among Richard C. Blum & Associates, L.P., PB
Capital Partners, L.P., and Perini Corporation, as amended (the "Series B
Purchase Agreement"), set forth on Exhibit 6.03(c).
(d) By-Law Amendments. The By-Laws shall have been amended and
restated in accordance with Exhibit 6.03(d) and such amendments (the "By-Law
Amendment") shall have been approved and made effective by the Board, the
Executive Committee and the holders of the Series B Preferred Stock, subject to
Closing.
(e) Due Diligence. Each Purchaser (other than TSC) shall be
fully satisfied in its sole discretion with the results of its review of, and
its due diligence investigations with respect to, the business, operations,
affairs, prospects, properties, assets, existing and potential liabilities,
obligations, profits and conditions (financial or otherwise) of the Company
(including the Disclosure Schedule). A Purchaser shall be deemed to be so
satisfied unless it notifies the Company in writing at or prior to 11:59 p.m.,
Eastern Time, on the date that is fourteen (14) calendar days after the date of
this Agreement (the "Diligence Termination Time") that it is terminating this
Agreement pursuant to Section 7.01(c)(iv) because it is not so satisfied. Until
the Closing, the Company shall (and shall cause each of the Subsidiaries to)
cooperate promptly and fully with Purchasers' officers, employees, counsel,
accountants and other authorized representatives (the "Representatives") and
shall afford such Representatives reasonable access during normal business hours
to all of its (1) sites, properties, books, contracts and records and personnel
and advisers (who will be instructed by the Company to cooperate), (2) such
additional financial and operating data and other information as to its business
and properties as the Purchasers may from time to time reasonably request,
including without limitation, access upon reasonable request to the Company's
Representatives, major customers, vendors, suppliers and creditors for due
diligence inquiry. The Company shall (and shall cause each of the Subsidiaries
to) furnish promptly to the Purchasers all information concerning its business,
properties and personnel as the Purchasers or their Representatives may
reasonably request on or before the Diligence Termination Time; provided that
any review will be conducted in a way that will not interfere unreasonably with
the conduct of the Company's business. The Purchasers will keep all information
and documents obtained pursuant to this Section 6.03(e) on a confidential basis
subject to Section 5.09(a).
(f) Poison Pill. The Rights Agreement shall be in full force
and effect and not have been otherwise amended, modified or supplemented on or
after the date of this Agreement; provided, however, that the Board shall have
amended or waived provisions of the Rights Agreement such that (i) neither the
execution nor the delivery of any Transaction Document nor the fulfillment of
the terms of any Transaction Document by the Company or any of the Purchasers
nor the issuance of Shares as herein and therein contemplated will cause there
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to be a Stock Acquisition Date or a Distribution Date and (ii) the Purchasers
will not be deemed to be Adverse Persons (as those terms are defined in the
Rights Agreement).
(g) Credit Facility. The bank loan syndicate representing the
lenders to the Company pursuant to the Amended and Restated Credit Agreement,
dated as of January 17, 1997, among the Company, the Banks listed therein and
Morgan Guaranty Trust Company of New York, as Agent, as amended from time to
time (the "Credit Facility"), shall have agreed to convert the Credit Facility
to a term loan and revolving credit facility, substantially in accordance with
the terms set forth on Exhibit 6.03(g)
(h) Closing Deliveries. The Company shall have delivered to
Purchasers on or before the Closing the following:
(i) Opinion of Goodwin, Procter & Hoar LLP,
dated as of the Closing Date, in form reasonably satisfactory
to Purchasers;
(ii) The Registration Rights Agreement,
executed by the Company;
(iii) The Shareholders Agreement, executed by
the Company;
(iv) Certificate of the Secretary or
Assistant Secretary of the Company dated as of the Closing
Date certifying: (i) that attached thereto is a true and
complete copy of the By-Laws of the Company as in effect on
the date of such certification; (ii) that attached thereto is
a true and complete copy of all resolutions adopted by the
Board authorizing the execution, delivery and performance of
the Agreement, the issuance, sale and delivery of the Shares,
and that all such resolutions are in full force in effect and
are all the resolutions adopted in connection with the
transactions contemplated by this Agreement and the
Transaction Documents; (iii) that attached thereto is a true
and complete copy of the Articles of Organization as in effect
on the date of such certification; and (iv) to the incumbency
and specimen signature of certain officers of the Company;
(v) Certificates representing the number of
the shares of Common Stock to be purchased, as described in
Section 2.02; and
(vi) Executed and conformed copies of such
other certificates, letters and documents as Purchasers may
reasonably request and as are customary for transactions such
as those contemplated by this Agreement and the Transaction
Documents.
(i) Tax Matters. The Company shall have received an opinion in
the form of Exhibit 6.03(i) hereto, from the Company's independent tax advisors
that a "change in ownership" within the meaning of Section 382 of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations promulgated
thereunder, shall not occur as a result of (i)
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the sale of 9,411,765 shares of Common Stock for $40 million, (ii) the exchange
of 100% of the Series B Preferred Stock for Common Stock at a price of $5.50 per
share, or (iii) any other transaction or occurrence prior to the Closing.
(j) Corporate Proceedings. All corporate proceedings of the
Company in connection with the transactions contemplated by this Agreement and
the Transaction Documents, and all documents and instruments incident thereto,
shall be satisfactory in form and substance to Purchasers and its counsel, and
Purchasers and its counsel shall have received all such documents and
instruments, or copies thereof, certified or requested, as may be reasonably
requested. The Special Committee of the Board shall have recommended the
execution and performance of this Agreement and the Transaction Documents to the
full Board after the delivery of a fairness opinion by the Special Committee's
financial advisor in a form reasonably satisfactory to the Special Committee and
the full Board shall have approved such execution and performance.
(k) Material Adverse Effect. No event, change or development
shall exist or have occurred since the date hereof which, individually or in the
aggregate with other events, changes or developments, has had or is reasonably
likely to have a Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole; provided, however, that Material Adverse Effect with respect
to this Section 6.03(k) shall not include (i) changes in general industry,
economic, regulatory, political or stock market conditions that affect the
Company (or the markets in which the Company competes) in a manner not
disproportionate to the manner in which such conditions affect other companies
in the industries or markets in which the Company competes; (ii) any
circumstances or events (including, without limitation, any loss of personnel,
loss of customers, loss of suppliers or the delay or cancellation of any orders
for products) arising primarily out of or resulting primarily from actions
contemplated by Company and the Purchasers in connection with this Agreement
and/or the transactions contemplated hereby; or (iii) changes in GAAP.
(l) Chapter 110F. The Issuance of the Shares hereunder shall
have been exempted from the provisions of Chapter 110F of the Massachusetts
General Laws.
(m) Listing. The Shares shall have been approved for listing
on the American Stock Exchange, subject only to official notice of issuance, as
required.
(n) Fundamental Corporate Changes. Except as specifically
contemplated hereby, the Company shall not have caused or permitted (i) any
change to the composition of the Executive Committee of the Board, or (ii) any
change to be made to the duties, rights and responsibilities of the Chairman.
Ronald S. Tutor shall be serving as Chairman of the Company.
(o) Additional Conditions.
(i) As to TSC, O&G and National Union shall
have delivered at the Closing their respective portions of the
Purchase Price, each of O&G and
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National Union shall have executed and delivered the
Shareholders Agreement at the Closing.
(ii) As to O&G, TSC and National Union shall
have delivered at the Closing their respective portions of the
Purchase Price, each of TSC and National Union shall have
executed and delivered the Shareholders Agreement at the
Closing.
(iii) As to National Union, O&G and TSC shall
have delivered at the Closing their respective portions of the
Purchase Price, each of O&G and TSC shall have executed and
delivered the Shareholders Agreement at the Closing.
(p) Certain Events. There shall not be in effect on the
Closing Date (i) any suspension or limit of trading in securities generally on
the American Stock Exchange (including automatic halt in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), (ii) the imposition generally of minimum or maximum prices
on such exchange or on The Nasdaq Stock Market or additional material
governmental restrictions, in either case not in force on the date of this
Agreement, by such exchange or by order of the SEC or the National Association
of Securities Dealers or any court or other governmental authority, (iii) the
declaration of any general banking moratorium by either Federal or New York
State authorities, or (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of any of which of the items referred to in
clauses (i), (ii), (iii) and (iv) is such as to make it, in reasonable judgment
of any Purchaser, impracticable or inadvisable to acquire the Shares on the
terms and in the manner contemplated by this Agreement.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Agreement may be terminated at any time
prior to the Closing, whether before or after the Stockholder Approvals have
been obtained:
(a) by mutual written consent of all of the Purchasers and the
Company;
(b) by any Purchaser or the Company:
(i) if the Closing shall not have occurred
prior to April 5, 2000, sixty days from the date of this
Agreement (the "Outside Date"); provided, however, that the
right to terminate this Agreement pursuant to this clause (i)
shall not be available to any party whose failure to fulfill
any obligation under this Agreement results in the failure of
the Closing to occur; and provided further, that
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the Outside Date shall be extended by no more than sixty (60)
days in the event that the conditions to the Purchasers'
obligations to close cannot be satisfied due to events that
are not within the control of, and have not been caused by,
the Company or the Special Committee, for which purposes
delays caused by review or comments by the SEC shall not be
deemed to have been within the control of or caused by the
Company or the Special Committee; or
(ii) if the Stockholder Approvals shall not
have been obtained notwithstanding the holding of a vote on
the Stockholder Meeting Proposals at the Stockholder Meeting
(including any adjournment or postponement) contemplated by
Section 5.05 (provided that the right to terminate this
Agreement under this Section shall not be available to any
party seeking termination who at the time is in breach of or
has failed to fulfill its obligations under this Agreement);
or
(iii) if there shall be any statute, law,
regulation or rule that makes consummating the transactions
contemplated hereby illegal or if any court or other
Governmental Entity of competent jurisdiction shall have
issued a judgment, order, decree or ruling, or shall have
taken such other action restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated
hereby and such judgment, order, decree or ruling shall have
become final and non-appealable (provided that, the party
seeking to terminate pursuant to this Section shall have used
commercially reasonable efforts to have any such order,
decree, ruling or other action vacated or lifted);
(c) by any Purchaser:
(i) if the Company shall have failed to
perform in any material respect any of its obligations
hereunder or shall have breached in any respect any
representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and the Company
has failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from
such Purchaser, and such failure to perform shall not have
been waived in accordance with the terms of this Agreement; or
(ii) if the Board or any committee thereof
withdraws or modifies (or publicly announces its intention to
do so, or resolves to do so) in a manner adverse to Purchasers
(as determined by any Purchaser in its reasonable judgment)
its approval or recommendation of this Agreement or the
transactions contemplated hereby or approves or recommends a
Transaction Proposal; or
(iii) if any of the conditions set forth in
Section 6.01 (other than Section 6.01(c)) or 6.03 shall become
impossible to fulfill (other than as a result of any breach by
such Purchaser of the terms of this Agreement) and shall not
have been waived in accordance with the terms of this
Agreement; or
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(iv) if any Purchaser (other than TSC) is not
satisfied with the Company (including as to any matters
contemplated by the Disclosure Schedules or the Filed Company
SEC Documents) as a result of its due diligence review and has
given the notice in the manner required by Section 6.03(e);
(d) by the Company:
(i) if any of the Purchasers shall have
failed to perform in any material respect any of their
obligations hereunder or shall have breached in any respect
any representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and Purchasers
have failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from
the Company, and such failure to perform shall not have been
waived in accordance with the terms of this Agreement; or
(ii) if any of the conditions set forth in
Section 6.01 (other than Section 6.01(c)) or 6.02 shall become
impossible to fulfill (other than as a result of any breach by
the Company of the terms of this Agreement) and shall not have
been waived in accordance with the terms of this Agreement; or
(iii) upon ten (10) days written notice to
Purchasers, if all of the following conditions have been met:
(x) the Company has complied with the terms of Section 5.07,
(y) the Company has received a Transaction Proposal that the
Special Committee has concluded, based on the advice of a
nationally-recognized investment banking firm (which shall
include Houlihan), is superior to the terms set forth herein
(a "Superior Transaction Proposal"), and (z) the Special
Committee determines in good faith, after consultation with
outside counsel, that it is advisable to do so in order to
comply with its fiduciary duties to the Company's stockholders
under applicable law.
SECTION 7.02 Effect of Termination. In the event of termination of this
Agreement by either the Company or any Purchaser as provided in Section 7.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of either Purchaser or the Company, other
than the provisions of this Section 7.02, Section 5.09(a) and Article IX and
except to the extent that such termination results from the willful and material
breach by a party of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
SECTION 7.03 Termination by One Purchaser. Notwithstanding the
provisions of this Article VII, the exercise by any one Purchaser of its
termination rights under Section 7.01 shall relieve such Purchaser of all
obligations under this Agreement (other than those set forth in this Section
7.03, Section 5.09(a) and Section 9.08) but shall not result in the termination
of this Agreement if, within five Business Days of receipt of such termination
notice by the other Purchasers, one or more of the other Purchasers shall agree
to an amendment to Exhibit 2.01 pursuant to which all Shares proposed to be
purchased under this Agreement are
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purchased by the other Purchasers (and provide a copy of such amended Exhibit
2.01 to the Company).
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Indemnification of Purchasers. The Company covenants and
agrees to defend, indemnify and hold harmless each of the Purchasers, their
Affiliates (other than the Company and any of its Subsidiaries), and their
respective officers, directors, partners, employees, agents, advisers and
representatives (collectively, the "Purchaser Indemnitees") from and against,
and pay or reimburse the Purchaser Indemnitees for, any and all Indemnifiable
Losses resulting from or based on (or allegedly resulting from or based on):
(a) any litigation or claims (including by any stockholders of
the Company in connection with any derivative actions, but not including any
litigation or claims brought or made by any of the Purchaser Indemnitees under
this clause (a)) resulting from or based on (or allegedly resulting from or
based on) any of the transactions contemplated by the Transaction Documents,
provided that the indemnity provided in this clause (a) shall not include (i)
losses resulting from or based on the acts or omissions of Purchaser Indemnitees
following the Closing, or (ii) claims resulting from or based on a breach by any
of the Purchasers of its obligations, representations, warranties, agreements or
covenants under this Agreement; or (iii) claims resulting from any contract,
obligation or other agreement between a third party claimant (other than a
stockholder, whether common or preferred, bondholder, lender, director or
officer of the Company (or an Affiliate of any of the foregoing)) and any
Purchaser; provided, however, that in no such case shall this Section 8.01(a) be
construed to limit the indemnity rights that a Purchaser Indemnitee may have in
any other Transaction Document; or
(b) any breach by the Company of any representation, warranty,
covenant or obligation of the Company hereunder or under any other Transaction
Document.
The Company shall reimburse the Purchaser Indemnitees for any legal or other
expenses incurred by such Purchaser Indemnitees in connection with investigating
or defending any such Indemnifiable Losses as such expenses are incurred.
Notwithstanding the foregoing provisions of this Section 8.01, the Company shall
not be liable to a Purchaser Indemnitee in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or omission made in the Proxy Statement, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by such Purchaser Indemnitee (or its Affiliates),
specifically for use in the preparation thereof.
SECTION 8.02 Indemnification Procedures. Promptly after receipt by a
Purchaser Indemnitee of notice of the commencement of any action or the written
assertion of any claim, such Purchaser Indemnitee shall, if a claim in respect
thereof is to be made against the Company, as the case may be (the "Indemnifying
Person"), notify the Indemnifying Person in
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writing of the commencement or the written assertion thereof. Failure by a
Purchaser Indemnitee to so notify the Indemnifying Person shall relieve the
Indemnifying Person from the obligation to indemnify such Purchaser Indemnitee
only to the extent that the Indemnifying Person suffers actual and material
prejudice as a result of such failure but in no event shall such failure to
notify the Indemnifying Person (i) constitute prejudice suffered by the
Indemnifying Person if it has otherwise received notice of the actions giving
rise to such obligation to indemnify or (ii) relieve it from any liability or
obligation that it may otherwise have to such Purchaser Indemnitee under this
Agreement. In case any such action or claim shall be brought or asserted against
any Purchaser Indemnitee and it shall notify the Indemnifying Person of the
commencement or assertion thereof, the Indemnifying Person shall be entitled to
participate therein but the defense of such action or claim shall be conducted
by counsel to the Purchaser Indemnitee, provided, however, that the Indemnifying
Person shall not, in connection with any one such action or proceeding or
separate but substantially similar actions or proceedings arising out of the
same general allegations, be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all Purchaser Indemnitees, except to
the extent that local counsel, in addition to regular counsel, is required in
order to effectively defend against such action or proceeding and provided
further that a Purchaser Indemnitee shall not enter into any settlement of any
such claim without the prior consent of the Company, such consent not to be
unreasonably withheld or delayed.
SECTION 8.03 Survival of Representations, Warranties and Covenants.
Except as provided in clauses (a), (b) or (c) of this Section 8.03, the
representations, warranties, covenants, and agreements included in this
Agreement shall survive for a period of three (3) years: (a) the obligations set
forth in Sections 5.08 (Access and Information), 5.09(b) (Publicity) and 5.12
(Directors' and Officers' Indemnification and Insurance), shall survive for the
periods specified therein for the performance of the covenants set forth
therein; (b) the representations set forth in Sections 3.01(n) (Taxes), 3.01(o)
(Employee Benefit Plans and Related Matters; ERISA) and 3.01(p) (Environmental
Laws) shall survive until the date that is six (6) months after the expiration
of the longest applicable federal or state statute of limitations; and (c) the
obligations set forth in Sections 5.09(a) (Confidentiality), and 5.10
(Restrictions), and Articles VIII (Indemnification) and IX (Miscellaneous) shall
survive indefinitely.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
43
<PAGE> 47
SECTION 9.02 Specific Enforcement. Purchasers, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity.
SECTION 9.03 Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) and the other Transaction Documents contain the entire
understanding of the parties with respect to the transactions contemplated
hereby.
SECTION 9.04 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been signed
by each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
SECTION 9.05 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC:
Tutor-Saliba Corp.
Attn: Ronald N. Tutor
15901 Olden Street
44
<PAGE> 48
Sylmar, CA 91342-1093
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
National Union Fire Insurance Company of
Pittsburgh, PA.
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10036
Attn: Chris Lee
Facsimile: (212) 458-2256
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia; Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
45
<PAGE> 49
or to such other address or telex number as any party may, from time to time,
designate in a written notice given in a like manner.
SECTION 9.06 Amendments. This Agreement may be amended as to Purchasers
and their successors and assigns (determined as provided in Section 9.07), and
the Company may take any action herein prohibited, or omit to perform any act
required to be performed by it, if the Company shall obtain the written consent
of Purchasers. This Agreement may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party or
parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
SECTION 9.07 Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns. Prior to the Closing Date, National
Union may assign all of its rights and obligations to American International
Group, Inc. ("AIG") or any other person the equity of which is, directly or
indirectly, 100% owned by AIG, without the consent of the other parties hereto,
and may assign up to 50% of the interest to be acquired by it pursuant to this
Agreement to a third party, subject to the written consent of the Company and
TSC, which shall not be unreasonably withheld (and, in either such event, such
assignee shall become a "Purchaser" hereunder). Except as provided in the
preceding sentence, no party may assign any of its rights under this Agreement
without the written consent of the other parties.
SECTION 9.08 Expenses and Remedies.
(a) All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such expense, except as set forth in the next four paragraphs.
(b) Notwithstanding Section 9.08(a), (i) if a Purchaser
terminates this Agreement pursuant to Section 7.01(c)(i) (due to material breach
of any covenant or agreement or an intentional and willful breach of any
representation or warranty by the Company) or (c)(ii), or (ii) if the Company
terminates this Agreement pursuant to Section 7.01(d)(ii) (by virtue of a
failure of the condition set forth in Section 6.02(d)) or 7.01(d)(iii), the
Company shall pay TSC a termination fee of $750,000 (the "Termination Fee")
within ten (10) days of such termination, which Termination Fee shall be deemed
to reimburse Purchasers for their legal, accounting and other out-of-pocket
expenses as well as the damages they will have suffered by virtue of such
termination.
(c) Notwithstanding Section 9.08(a), (i) if a Purchaser or the
Company terminates this Agreement pursuant to Section 7.01(b)(i) or (ii), (ii)
if a Purchaser terminates this Agreement pursuant to Section 7.01(c)(i) (for
reasons other than as provided in Section 9.08(b)) or (c)(iii) (for failures of
the conditions set forth in 6.03(a), 6.03(b), 6.03(d), 6.03(f), 6.03(g)
(provided that no amount shall be payable if the failure is not due to any fault
of the Company), 6.03(h), 6.03(i), 6.03(j), 6.03(k), 6.03(l), 6.03(m), or
6.03(n)), or (iii) the Company terminates this Agreement pursuant to Section
7.01(d)(ii) (other than for failure of a condition set forth in
46
<PAGE> 50
section 6.02(d)), the Company shall reimburse Purchasers for the reasonable
out-of-pocket expenses (including reasonable fees and expenses of legal counsel)
incurred by Purchasers in connection with this Agreement or the matters
contemplated hereby (the "Purchasers' Expenses"), which reimbursable amount
shall not to exceed $600,000 in the aggregate.
(d) Notwithstanding Section 9.08(a), if (i) either Purchaser
or the Company terminates this Agreement pursuant to any provision of Section
7.01 (other than a termination for which a Termination Fee was paid pursuant to
Section 9.08(b) and other than a termination by the Company pursuant to Section
7.01(d)(i)), and (ii) during the period ending twelve (12) months after
termination of this Agreement, the Company enters into an agreement relating to
a Transaction Proposal, then immediately prior to consummation of such
transaction, the Company shall pay the Termination Fee; provided, however, that
the Company shall receive a credit for any Purchasers' Expenses paid pursuant to
Section 9.08(c) and it being understood that if the Termination Fee is paid
pursuant to Section 9.08(b) it shall not be required to be paid subsequently
under this Section 9.08(d).
(e) Notwithstanding Section 9.08(a), upon the occurrence of
the Closing, the Company shall reimburse the Purchasers for the Purchasers'
Expenses, which reimbursable amount shall not be subject to the limit set forth
in Section 9.08(c).
SECTION 9.09 Transfer of Shares. Each Purchaser understands and agrees
that the Shares have not been registered under the Securities Act or the
securities laws of any state and that they may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such laws or as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such laws is
available. Each Purchaser acknowledges that except as provided in the
Registration Rights Agreement, it has no right to require the Company to
register the Shares. Each Purchaser understands and agrees that each certificate
representing shares of Common Stock shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH
LAWS."
and Purchaser agrees to transfer shares of Common Stock only in accordance with
the provisions of such legends. After termination of the requirement that all or
part of such legend be placed upon a certificate, the Company shall, upon
receipt by the Company of evidence reasonably satisfactory to it that such
requirement has terminated and upon the written request of the holders of the
Shares issue certificates for the Shares that do not bear such legend.
SECTION 9.10 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the
47
<PAGE> 51
State of New York, except to the extent that Massachusetts law mandatorily
governs. Each of the Company and Purchasers irrevocably submits to the personal
exclusive jurisdiction of the United States District Court for the Southern
District of New York for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby (and, to
the extent permitted under applicable rules of procedure, agrees not to commence
any action, suit or proceeding relating hereto except in such court). Each of
the Company and Purchasers further agree that service of any process, summons,
notice or document hand delivered or sent by registered mail to such party's
respective address set forth in Section 9.10 will be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction as set forth in the
immediately preceding sentence. Each of the Company and Purchasers irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in such court that any such action, suit or
proceeding brought in such court has been brought in an inconvenient forum.
SECTION 9.11 Third Party Beneficiaries. As provided in Section 5.12,
the directors of the Company are the intended beneficiaries of that section of
this Agreement. Except as provided in Section 5.12, nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
SECTION 9.12 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
SECTION 9.13 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by the other party as to such
tax consequences.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
48
<PAGE> 52
IN WITNESS WHEREOF, each Purchaser and the Company have caused
this Agreement to be duly executed as of the day and year first above written.
PERINI CORPORATION TUTOR-SALIBA CORPORATION
By: /s/ Robert Band By: /s/ Ronald N. Tutor
--------------------------- --------------------------------
Name: Robert Band Name: Ronald N. Tutor
Title: President Title: President & Chief Executive
Officer
O&G INDUSTRIES, INC. NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.
By: /s/ David M. Oneglia
---------------------------
Name: David M. Oneglia By: /s/ David B. Pinkerton
Title: President ---------------------------------
Name: David B. Pinkerton
Title: Vice President
49
<PAGE> 53
EXHIBIT 2.01
PURCHASE AND SALE OF SHARES
<TABLE>
<S> <C>
Tutor-Saliba Corporation 2,352,942
O&G Industries, Inc. 2,352,941
National Union Fire Insurance Company of Pittsburgh, PA. 4,705,882
==========
TOTAL 9,411,765
</TABLE>
50
<PAGE> 54
EXHIBIT 6.02(c)(i)
FORM OF REGISTRATION RIGHTS AGREEMENT
[to be attached]
51
<PAGE> 55
EXHIBIT 6.02(c)(ii)
FORM OF SHAREHOLDERS AGREEMENT
[to be attached]
52
<PAGE> 56
EXHIBIT 6.03
REQUIRED AMENDMENTS AND REVISIONS
RELATED TO SERIES B PREFERRED STOCK
1. Deletion or waiver of Section 7.2 of the Series B Purchase Agreement in
its entirety.
2. Deletion or waiver of Section 7.3 of the Series B Purchase Agreement in
its entirety.
3. Replacement of Section 7(b) of the Series B Certificate of Vote with:
"On and after the Closing (as defined in the Securities Purchase
Agreement, dated January __, 2000, no action on the part of Corporation
shall constitute a 'Special Default'."
4. Deletion of Section 13 of the Series B Certificate of Vote in its
entirety.
5. Deletion or waiver of Section 7.20 of the Series B Purchase Agreement.
53
<PAGE> 57
EXHIBIT 6.03(d)
TERMS OF AMENDMENT TO BY-LAWS
[to be attached]
54
<PAGE> 58
EXHIBIT 6.03(g)
TERMS OF AMENDMENT TO CREDIT FACILITIES
[to be attached]
55
<PAGE> 59
EXHIBIT 6.03(i)
FORM OF KPMG OPINION REGARDING NOLS
[to be attached]
56
<PAGE> 1
Exhibit (d)
SHAREHOLDERS' AGREEMENT
DATED AS OF _______ ___, 2000
AMONG
TUTOR-SALIBA CORPORATION,
RONALD N. TUTOR,
O&G INDUSTRIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
BLUM CAPITAL PARTNERS, L.P.
PB CAPITAL PARTNERS, L.P.,
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS,
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P,
AND
PERINI CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Definitions ..................................................... 1
SECTION 1.01 Definitions ................................................ 1
SECTION 1.02 Other Terms ................................................ 6
ARTICLE II Shares Subject to this Agreement; Transfers .................... 7
SECTION 2.01 Shares Subject to this Agreement ........................... 7
SECTION 2.02 Restrictions on Transfer ................................... 7
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings ...... 8
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs .. 8
SECTION 2.05 Attempted Transfers in Violation of this Agreement ......... 9
SECTION 2.06 Legend ..................................................... 9
ARTICLE III Put Rights .................................................... 11
SECTION 3.01 Put Option ................................................. 11
SECTION 3.02 Put Period ................................................. 11
SECTION 3.03 Put Notice ................................................. 11
SECTION 3.04 Put Price .................................................. 12
SECTION 3.05 Put Closing ................................................ 12
SECTION 3.06 Assignment of Put Option ................................... 12
SECTION 3.07 RNT Obligation Under Put Option ............................ 12
SECTION 3.08 Put Postponement ........................................... 13
SECTION 3.09 Exercise of Put Option Not a Transfer ...................... 13
ARTICLE IV Call Rights .................................................... 13
SECTION 4.01 Call Option ................................................ 13
SECTION 4.02 Call Period ................................................ 13
SECTION 4.03 Call Notice ................................................ 13
SECTION 4.04 Call Price ................................................. 13
SECTION 4.05 Call Closing ............................................... 13
SECTION 4.06 Assignment of Call Option .................................. 14
SECTION 4.07 Call Postponement .......................................... 14
SECTION 4.08 Exercise of Call Option Not a Transfer ..................... 14
ARTICLE V Rights of First Refusal ......................................... 15
SECTION 5.01 Right of First Refusal on Transfers ........................ 15
SECTION 5.02 Notice of Intent to Purchase ............................... 15
SECTION 5.03 Offered Shares Closing ..................................... 16
SECTION 5.04 Sale to Third Party ........................................ 16
SECTION 5.05 Limitation as to National Union ............................ 17
ARTICLE VI Tag-Along Rights ............................................... 17
SECTION 6.01 Tag-Along Option ........................................... 17
SECTION 6.02 Sale to Third Party ........................................ 17
SECTION 6.03 Limitation as to National Union ............................ 18
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VII The Company's Board Of Directors; Publicity ................... 18
SECTION 7.01 Nominees ................................................... 18
SECTION 7.02 Voting for Election of Directors ........................... 20
SECTION 7.03 Vacancy; Removal ........................................... 20
SECTION 7.04 Continuation as Director ................................... 20
SECTION 7.05 Publicity .................................................. 20
SECTION 7.06 Observer Rights for Shareholder Designee ................... 20
SECTION 7.07 Subscription Rights ........................................ 21
ARTICLE VIII Miscellaneous ................................................ 22
SECTION 8.01 Injunctive Relief .......................................... 22
SECTION 8.02 Entire Agreement ........................................... 22
SECTION 8.03 Binding Effect; Benefit .................................... 22
SECTION 8.04 Assignability .............................................. 22
SECTION 8.05 Amendment; Waiver; Termination ............................. 22
SECTION 8.06 Notices .................................................... 23
SECTION 8.07 Fees and Expenses .......................................... 25
SECTION 8.08 Headings ................................................... 25
SECTION 8.09 Counterparts ............................................... 25
SECTION 8.10 Governing Law; Consent to Jurisdiction ..................... 26
SECTION 8.11 Limitations on Damages ..................................... 26
SECTION 8.12 Severability ............................................... 26
SECTION 8.13 Amendments to Laws ......................................... 26
SECTION 8.14 No Third Party Beneficiaries ............................... 26
SECTION 8.15 Mutual Drafting ............................................ 27
SECTION 8.16 Further Representations .................................... 27
</TABLE>
ii
<PAGE> 4
SHAREHOLDERS' AGREEMENT dated as of ________ __, 2000 (the
"Agreement"), by and among Tutor-Saliba Corporation, a California corporation
("TSC"), Ronald N. Tutor ("RNT"), National Union Fire Insurance Company of
Pittsburgh, PA, a Pennsylvania corporation ("National Union"), O&G Industries,
Inc., a Connecticut corporation ("O&G"), BLUM Capital Partners, L.P., a
California limited partnership ("BLUM"), PB Capital Partners, L.P., a Delaware
limited partnership ("PB Capital"), The Common Fund for Non-Profit
Organizations, a New York non-profit corporation ("The Common Fund"), and The
Union Labor Life Insurance Company, a Maryland corporation acting on behalf of
its Separate Account P ("ULLICO"), and Perini Corporation, a Massachusetts
corporation (the "Company"). Except to the extent a signatory hereto is
explicitly excluded from the application of particular provisions of this
Agreement as specified below, TSC, National Union, O&G, BLUM, PB Capital, The
Common Fund and ULLICO are collectively referred to as the "Shareholders". O&G,
BLUM, PB Capital, The Common Fund and ULLICO shall each be a party to this
Agreement solely for purposes of Sections 2.04, 2.05 and 2.06 and Articles VI,
VII and VIII. The Company shall be a party to this Agreement solely for purposes
of Sections 2.03, 2.04, 2.05 and 2.06 and Articles VII and VIII.
W I T N E S S E T H :
WHEREAS, pursuant to the Securities Purchase Agreement (as defined
below) TSC, National Union and O&G have agreed to acquire securities of the
Company; and
WHEREAS, RNT is the sole shareholder of TSC; and
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their relative rights, duties and obligations after
consummation of the transactions contemplated by the Securities Purchase
Agreement; and
WHEREAS, O&G, BLUM, PB Capital, The Common Fund and ULLICO have agreed
to become parties to this Agreement to govern certain restricted transfers as
set forth in Sections 2.04, 2.05 and 2.06, to provide tag-along rights and
obligations as set forth in Article VI and to provide certain rights and
obligations with respect to the election of directors, observer status and
subscription as set forth in Article VII only.
NOW, THEREFORE, the Shareholders having authorized the execution and
delivery of this Shareholders' Agreement as required by the laws of the
jurisdiction in which each is incorporated or organized, as the case may be, and
intending to be bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. The following terms used in this Agreement
have the following meanings:
(a) "Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person, pro-
1
<PAGE> 5
vided that no security holder of the Company shall be deemed an Affiliate of any
other security holder solely by reason of any investment in the Company.
(b) "Beneficially Own" shall have the meaning set forth in
Rules 13d-3 or 16a-1 of the Exchange Act.
(c) "BLUM" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(d) "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are required or authorized
by law to close.
(e) "Call Event" means the proposed Transfer of Put/Call
Shares to a bona fide purchaser through a registered public offering pursuant to
registration rights granted under the Registration Rights Agreement.
(f) "Call Return" means 14% per annum.
(g) "Closing" means the Closing as defined in the Securities
Purchase Agreement.
(h) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(i) "The Common Fund" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(j) "Common Stock" means the common stock, par value $1.00 per
share, of the Company.
(k) "Company" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
(l) "Control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the power, direct or indirect, (i) to vote or
direct the voting of more than 50% of the outstanding shares of voting
securities of such Person, or (ii) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise, except
that no change of control will be deemed to have occurred as a result of
customary rights granted in any indenture, credit agreement or other agreement
or instrument unless and until there has been a default under the terms of that
agreement and the lender exercises the rights granted therein.
(m) "Covered Common Stock" means the shares of Common Stock of
the Company purchased by a Shareholder pursuant to the Securities Purchase
Agreement or otherwise owned by a Shareholder on the date hereof.
(n) "Definitive Agreements" mean this Agreement and the
Securities Purchase Agreement, each as amended, modified or supplemented from
time to time.
2
<PAGE> 6
(o) "Distributable Property-in-Kind" means Property-in-Kind
(other than Property-in-Kind that has been included in the calculation of
Distributions) distributed or declared for distribution to a Shareholder on
account of any Shares or other securities distributed in kind on account of
Shares.
(p) "Distributions" mean (i) all cash dividends declared and
paid on account of any Share, plus (ii) the cash proceeds received by a
Shareholder from the sale of Property-in-Kind (minus all costs incurred by the
Shareholder in connection with the sale, including attorneys fees and expenses),
plus (iii) the Fair Market Value of any Property-in-Kind received by the
Shareholder in exchange for Shares.
(q) "Equity Security" means (i) any Common Stock or other
Voting Securities, (ii) any securities of the Company convertible into or
exchangeable for Common Stock or other Voting Securities or (iii) any options,
rights or warrants (or any similar securities) issued by the Company to acquire
Common Stock or other Voting Securities, in each case whether preferred or
common, of any class or series, outstanding prior to or any time after the date
of this Agreement.
(r) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(s) "Fair Market Value" means (i) with respect to any security
listed on a national securities exchange or quoted on the National Association
of Securities Dealers, Inc. National Market System, the average of the daily
closing prices on the American Stock Exchange (or the principal exchange or
automated trading system on which such security may be listed or may trade) for
the twenty (20) consecutive trading days commencing on the fifth (5th) trading
day prior to the date as of which the Fair Market Value is being determined, and
(ii) with respect to any security other than one described in clause (i) or any
other property or assets, the Fair Market Value shall be the fair market value
of such security or property established by two independent investment banking
firms with national reputations, one of who will be selected by the Put
Purchaser or Call Purchaser, as the case may be, and one of whom will be
selected by the Put Seller or Call Seller, as the case may be. If the two
investment banking firms arrive at fair market values that differ by more than
10%, the two investment banking firms shall select a third investment banking
firm with a national reputation. The Fair Market Value shall be equal to the
average of the two appraisals closest in value to each other in the case of
three appraisals, or the average of the two appraisals if there is not a third
appraisal. The closing price referred to in clause (i) for each day shall be the
closing price, if reported, or, if the closing price is not reported, the
average of the closing bid and asked prices as reported by the Nasdaq National
Market (or such principal exchange or market) or a similar source selected from
time to time by the Company for quotation of its Common Stock. In the event the
closing prices required by clause (i) are unavailable, Fair Market Value shall
be determined based on the ten (10) consecutive trading days commencing on the
fifth (5th) trading day prior to the relevant date or, if such closing prices
are unavailable, Fair Market Value shall be determined as provided in clause
(ii).
(t) "Initial Investment per Share" means the $4.25 per Share
paid by National Union for the Covered Common Stock under the Securities
Purchase Agreement, as
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<PAGE> 7
adjusted for any subsequent common stock dividends, stock splits, reverse stock
splits or other similar transactions.
(u) "National Union" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(v) "New Security" means any Equity Security issued by the
Company after the Closing; provided that "New Security" shall not include (i)
any securities issuable upon conversion of any convertible Equity Security, (ii)
any securities issuable upon exercise of any option, warrant or other similar
Equity Security, (iii) any securities issuable in connection with any stock
split, stock dividend or recapitalization of the Company where such securities
are issued to all stockholders of the Company on a pro rata basis, (iv) any
securities issued to officers, employees or directors of the Company or any of
its Subsidiaries pursuant to any Board-approved officer, employee or director
benefit plan or arrangement, (v) any securities issued in connection with any
transaction whereby the Company acquires the stock, assets or business of a
third party not prohibited by this Agreement, or (vi) any security issued in any
public offering registered under the Securities Act .
(w) "O&G" has the meaning ascribed to it in the introductory
paragraph of this Agreement.
(x) "PB Capital" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(y) "Person" means and includes an individual, a partnership,
a joint venture, a corporation, a trust, a limited liability company, an
unincorporated organization, any foreign, federal, state or local court or
tribunal or administrative, governmental or regulatory body, agency commission,
division, department, public body or other authority, or any other organization
or entity.
(z) "Pro Rata Share" means, as to any Shareholder or Permitted
Transferee, the fraction of an entire issuance of New Securities, the numerator
of which shall be the sum of (w) the number of shares of Common Stock owned by
such Shareholder or Permitted Transferee immediately prior to such issuance of
such New Securities plus (x) the number of shares of Common Stock into which
then outstanding convertible securities (including, without limitation, options
and warrants) owned by such Shareholder or Permitted Transferee are then
exercisable or convertible, and the denominator of which shall be the sum of (y)
the aggregate number of shares of Common Stock outstanding immediately prior to
such issuance of such New Securities plus (y) the number of shares of Common
Stock into which then outstanding convertible securities (including, without
limitation, options and warrants) are then exercisable or convertible.
(aa) "Property-in-Kind" means securities, personal property or
other assets (other than cash or additional shares of Common Stock) distributed
to a Shareholder on account of Shares or other securities distributed in kind on
account of Shares, whether through a dividend, recapitalization, reorganization,
merger or similar transaction.
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<PAGE> 8
(bb) "Put Event" means (i) a change of Control of the Company;
(ii) a change of Control of TSC; (iii) one or more Transfers (other than a
Transfer to a Permitted Transferee) by TSC and its Permitted Transferees of
shares of Common Stock such that RNT fails to have sole direct or indirect
Beneficial Ownership of at least 10% of the outstanding Common Stock of the
Company (for purposes hereof, the voting securities of the Company Beneficially
Owned, directly or indirectly, by TSC shall be deemed solely Beneficially Owned
indirectly by RNT), (iv) RNT shall not be involved in the management of the
Company or TSC, (v) breach of any provisions of the Definitive Agreements
arising out of the sole actions of RNT or TSC; (vi) an order shall be entered by
a court of competent jurisdiction finding TSC or RNT to be bankrupt or
insolvent, ordering or approving liquidation or reorganization of TSC or
appointing a receiver for all or substantially all of the property of TSC or RNT
and such order shall not be vacated or stayed within 60 days, or an assignment
shall be made by TSC or RNT for the benefit of its creditors; or (vii)
acceleration of payment of a material principal amount of the senior debt of the
Company. No Transfer of any security of the Company by National Union or any
Permitted Transferee or Co-investor shall constitute or give rise to a Put Event
hereunder.
(cc) "Put Return" means 10% per annum.
(dd) "Put/Call Shares" means up to 50% of the Shares purchased
by National Union at Closing, which Shares (including Shares issued on account
of any subsequent Common Stock dividends, stock splits, reverse stock splits or
other similar transactions relating thereto) shall bear the legends set forth in
subsections 2.06(a) and (b) and which shall be represented by a certificate
separate and distinct from any Shares held by National Union or its Permitted
Transferee, if any, that are not identically legended, and (ii) Shares
represented by certificates issued to replace the certificate(s) referred to in
the preceding clause; provided, however, that the Put/Call Shares shall not
include Shares Transferred in accordance with Article V (except as provided in
Section 5.04) or Article VI (except as provided in Section 6.02) of this
Agreement. Shares shall cease to be Put/Call Shares upon the lapse or
termination of the Put Option or Call Option.
(ee) "Registration Rights Agreement" means that certain
Registration Rights Agreement dated even date herewith among the Company, TSC,
National Union and O&G, as amended, modified or supplemented from time to time.
(ff) "ROFR Shares" means: (i) as to National Union, its
Permitted Transferees and any Co-Investors, any Put/Call Shares owned by such
party (including Shares issued on account of any subsequent Common Stock
dividends, stock splits, reverse stock splits or other similar transactions
relating thereto), and (ii) as to TSC and its Permitted Transferees, any Shares
owned by such party immediately following the Closing (including Shares issued
on account of any subsequent Common Stock dividends, stock splits, reverse stock
splits or other similar transactions relating thereto).
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Securities Act" means the Securities Act of 1933, as
amended.
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<PAGE> 9
(ii) "Securities Purchase Agreement" means that certain
Securities Purchase Agreement dated even date herewith entered into by and among
the Company, TSC, National Union and O&G relating to the purchase and sale of
Covered Common Stock, as amended, modified or supplemented from time to time.
(jj) "Shareholder" has the meaning ascribed to it in the
introductory paragraph to this Agreement and also includes any Permitted
Transferee, whether in connection with its execution and delivery as of the date
hereof, or otherwise, so long as such Person Beneficially Owns any Shares and
the Agreement has not terminated.
(kk) "Shares" means shares of Covered Common Stock as adjusted
for stock splits, reverse stock splits and Common Stock dividends declared and
paid on account of Covered Common Stock and similar transactions.
(ll) "Subsidiary" means any Person of which a Shareholder or
Permitted Transferee shall now or hereafter own or be owned by, directly or
indirectly, through one or more Subsidiaries or otherwise, a Person holding
equity interests representing 100% of the voting securities of such Person.
(mm) "Target Investment Value per Share" means, as of the date
of any Put Notice or Call Notice, the amount to be paid to National Union or its
Permitted Transferee, if any, such that the internal rate of return (calculated
on an annual basis) on National Union's Initial Investment per Share, taking
into account Distributions, shall be equal to the Put Return or Call Return, as
the case may be.
(nn) "Trading Day" with respect to a securities exchange or
automated quotation system means a day on which such exchange or automated
quotation system is open and conducting business.
(oo) "Transfer" (including with correlative meanings, the
terms "transferring" and "transferred") means the direct or indirect sale,
assignment, transfer, grant of a participation or derivative interest in, pledge
or other disposition of any Shares (or solicitation of any offers to buy or
otherwise acquire, or take a pledge of, any Shares).
(pp) "ULLICO" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
(qq) "Voting Security" means at any time shares of any class
of capital stock of the Company which are then entitled to vote generally in the
election of directors.
SECTION 1.02 Other Terms. Each of the following terms is defined in the
Section set forth opposite such term:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
Assignee 3.07
Call Closing 4.05
Call Notice 4.04
</TABLE>
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<PAGE> 10
<TABLE>
<S> <C>
Call Option 4.01
Call Period 4.02
Call Postponement 4.07
Call Price 4.05
Call Purchaser 4.01
Call Seller 4.01
Co-Investor 2.03
Disposing Shareholder 6.01
NOLs 2.04
Offer 5.01
Offered Shares 5.01
Offered Shares Closing 5.03
Permitted Transferee 2.03
Proposed Transferee 5.01
Public Offering 2.03
Purchasing Shareholder 5.02
Put Closing 3.06
Put Event Period 3.02
Put Notice 3.04
Put Option 3.01
Put Period 3.02
Put Price 3.05
Put Postponement 3.09
Put Purchaser 3.01
Put Seller 3.01
Selling Shareholder 5.01
Subscription Notice 7.07
</TABLE>
ARTICLE II
SHARES SUBJECT TO THIS AGREEMENT; TRANSFERS
SECTION 2.01 Shares Subject to this Agreement. Except as otherwise
provided in any Article of this Agreement, the Shares owned by any Shareholder,
Permitted Transferee or Co-Investor from time to time shall be subject to this
Agreement. Shares transferred by any Shareholder, Permitted Transferee or
Co-Investor shall not be entitled to the benefits of, or subject to the
obligations in, this Agreement unless otherwise expressly provided for in this
Agreement.
SECTION 2.02 Restrictions on Transfer. No Shareholder, Permitted
Transferee or Co-Investor may, directly or indirectly, Transfer to third parties
or any other shareholder of the Company, any Shares (including, in the case of
National Union or its Permitted Transferee, the Put/Call Shares), in whole or in
part, unless both (i) such Shares are Transferred pursuant to Section 2.04 of
this Agreement, and (ii) such Shares are Transferred, directly or indirectly, in
accordance with Articles III, IV, V and VI of this Agreement to the extent such
provisions are
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<PAGE> 11
applicable. For purposes hereof, an indirect Transfer shall include the Transfer
of Control of any Shareholder except where the indirect transferee is a
Permitted Transferee.
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings.
(a) A "Permitted Transferee" shall mean, as to any
Shareholder, (i) a Subsidiary of such Shareholder, (ii) any Person that owns,
directly or indirectly, 100% of the outstanding capital stock of such
Shareholder or (iii) a Subsidiary of a person described in clause (ii). A
Shareholder shall be permitted to Transfer up to 100% of its Shares to a
Permitted Transferee without first complying with any provisions of this
Agreement other than Sections 2.04 and 2.05. A Permitted Transferee shall be
entitled to the benefits of, and be subject to the obligations in, this
Agreement. A Permitted Transferee shall be required to execute and deliver a
counterpart of this Agreement and such other agreements as the Shareholders and
the Company shall reasonably request agreeing to be bound hereby and such
Permitted Transferee shall be deemed to be a Shareholder hereunder and a party
to this Agreement.
(b) A "Co-Investor" shall mean any Person (other than a
Permitted Transferee or a purchaser in a bona fide registered public offering)
to which any Shareholder, Permitted Transferee or Co-Investor Transfers Shares.
Notwithstanding anything herein to the contrary, (x) a Co-Investor shall have no
rights or obligations under Articles III, IV, V or VI of this Agreement (except
as otherwise provided in Sections 5.04 or 6.02), and (y) a Co-Investor shall
have no rights to nominate a director under Article VII but shall be subject to
the voting requirements of Section 7.02 thereof.
(c) A Shareholder shall be permitted to Transfer up to 100% of
its Shares (other than Put/Call Shares) to a bona fide purchaser through a
registered public offering pursuant to registration rights granted under the
Registration Rights Agreement (a "Public Offering") without first complying with
any provisions of this Agreement other than Sections 2.04 and 2.05 and Articles
V and VI. Persons who acquire their Shares in a Public Offering shall not have
any rights or obligations under this Agreement and shall not become parties
hereto.
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.
Notwithstanding any other provision of the Agreement to the contrary, to
preserve the Company's ability to fully utilize its net operating loss
carryforwards ("NOLs"), which each Shareholder deems to be a material favorable
attribute of its investment in the Equity Securities of the Company, each of the
Shareholders, their Permitted Transferees and the Co-Investors agrees that it
will not purchase or sell any Equity Securities of the Company during the
three-year period commencing on the Closing Date unless it meets each of the
following four conditions:
(a) Such Shareholder, Permitted Transferee or Co-Investor
shall notify each of the Company and the other parties hereto in writing at
least fifteen (15) Business Days in advance of any proposed purchase or sale;
(b) Other than with respect to Put/Call Shares being
Transferred in accordance with Article III or IV of this Agreement, all the
other Shareholders shall be given the opportunity to participate in any proposed
purchase or sale in proportion to the amount of Equity
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<PAGE> 12
Securities of the Company held by such Shareholder as of the date of the notice
referred to in clause (a);
(c) Each Shareholder, Permitted Transferee or Co-Investor
shall consummate any proposed purchase or sale only to the extent that tax
advisors for the Company (or in the alternative, tax advisors retained by the
selling party reasonably acceptable to the Company and the Shareholders) have
provided the Company with written advice that the proposed purchase or sale will
not impair the ability of the Company to fully utilize its remaining NOLs; the
Company shall use commercially reasonable efforts to obtain tax advice referred
to in this clause (c) from its tax advisors and shall cooperate with the
reasonable requests for information from the Shareholders and their respective
tax advisors retained pursuant to this clause (c); and
(d) Each Permitted Transferee and Co-Investor shall execute
and deliver a counterpart of this Agreement or such other agreements as the
Shareholders and the Company shall reasonably request as to the existence and
enforceability of Sections 2.04 and 2.05 and such Permitted Transferee or
Co-Investor shall be deemed to be a Shareholder hereunder and a party to this
Agreement for such purposes.
In addition, each of the Shareholders and their respective Permitted Transferees
agrees that during the three year period commencing on the Closing Date, it will
and it will use commercially reasonable efforts to cause any director designated
by it to - vote against any issuance or redemption of Equity Securities by the
Company if such issuance or redemption would impair the ability of the Company
to fully utilize its remaining NOLs unless such issuance or redemption is
authorized by Shareholders and their Permitted Transferees holding at least
two-thirds of the Shares then held by such persons.
SECTION 2.05 Attempted Transfers in Violation of this Agreement. Any
attempt by a Shareholder, Permitted Transferee or Co-Investor to transfer Equity
Securities of the Company or any interest therein, directly or indirectly, to
any Person in violation of any provision of this Agreement shall be void ab
initio and the Company shall have no obligation to, and shall refuse to,
register such Equity Securities of the Company in the name of the transferee and
the transferee shall have no rights with respect to such Equity Securities.
SECTION 2.06 Legend.
(a) In addition to any other legend that may be required
pursuant to the Securities Purchase Agreement or otherwise, each certificate for
the Shares that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER (INCLUDING RIGHTS OF FIRST REFUSAL
AND TAG-ALONG RIGHTS), ALL AS SET FORTH IN THE SHAREHOLDERS'
AGREEMENT DATED AS OF ______ ___, 2000. THE HOLDER OF THIS
CERTIFICATE MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
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<PAGE> 13
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN
FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE
SECRETARY OF THE COMPANY."
(b) In addition to any other legend that may be required, each
certificate for the Put Shares that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO PUT AND CALL OPTIONS AS SET FORTH IN THE
SHAREHOLDERS' AGREEMENT DATED AS OF ________ ___, 2000 AND ARE
NOT TRANSFERABLE EXCEPT AS PERMITTED UNDER THAT AGREEMENT. THE
HOLDER OF THIS CERTIFICATE MAY REQUEST A COPY OF THE
SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF WHICH THE
COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST
ADDRESSED TO THE SECRETARY OF THE COMPANY."
(c) In addition to any other legend that may be required, each
certificate for Equity Securities that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER IN ORDER TO PRESERVE THE
COMPANY'S ABILITY TO UTILIZE ITS NET OPERATING LOSS
CARRYFORWARDS AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT
DATED AS OF ________ ___, 2000 AND ARE NOT TRANSFERABLE EXCEPT
AS PERMITTED UNDER THAT AGREEMENT. THE HOLDER OF THIS
CERTIFICATE MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL MAIL TO THE
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5) DAYS
AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE
COMPANY."
(d) The same legends shall be placed on all certificates for
Shares and other Equity Securities, as the case may be, that are or become
subject to this Agreement. The failure to place legends on a certificate shall
not affect the application of this Agreement to the Shareholders.
(e) If any Shares shall cease to be subject to the
restrictions on Transfer under this Article II, the holder may request that the
Company remove the legend set forth in Section 2.06(a) or, if the Shares shall
cease to be Put/Call Shares, the holder may request the Company to remove the
legend set forth in Section 2.06(b), or, if Equity Securities shall cease to be
subject to the restrictions on Transfer set forth in Section 2.04, the holder
may request
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<PAGE> 14
the Company to remove the legend set forth in Section 2.06(c)and issue a new
certificate evidencing such Equity Securities without the applicable legend
required to be endorsed thereon, if such legend is no longer applicable.
ARTICLE III
PUT RIGHTS
SECTION 3.01 Put Option. Subject to Section 2.04 (other than subsection
2.04(b)), National Union and its Permitted Transferees, if any (collectively the
"Put Seller") shall have the right, at their collective discretion, to cause TSC
or its Assignee (as hereafter defined) (a "Put Purchaser") to purchase (the "Put
Option") all (but not less than all) of the Put/Call Shares owned by the Put
Seller as of the date notice is given pursuant to Section 3.03; provided,
however, that during a Put Event Period, National Union may elect to include
within the term "Put/Call Shares" for purposes of this Article III any other
Shares purchased by National Union at Closing then owned by it (including Shares
issued on account of any subsequent Common Stock dividends, stock splits,
reverse stock splits or other similar transactions relating thereto).
SECTION 3.02 Put Period. The "Put Period" shall be the period
commencing on the third anniversary of the Closing and ending on the sixth
anniversary of the Closing. In addition, a "Put Event Period" shall also
commence on the occurrence of a Put Event and shall continue for ninety (90)
days thereafter.
SECTION 3.03 Put Notice. The Put Seller shall exercise the Put Option
by delivery of written notice to the Put Purchaser during the Put Period or Put
Event Period, as the case may be. Upon receipt of a Put Notice in accordance
with the terms hereof, the Put Seller shall be obligated to sell all of the
Put/Call Shares then outstanding free and clear of all liens and encumbrances
created by it or its Affiliates (other than pursuant to this Agreement) and the
Put Purchaser shall be obligated to purchase all of such Put/Call Shares at the
applicable Put Price in accordance with, and subject to, the terms hereof;
provided, however, that the Put Option may not be exercised if the Put Seller
has breached the requirements of Article 2 hereof for so long as such breach is
continuing.
SECTION 3.04 Put Price. The "Put Price" shall be the product of the (a)
the number of Put/Call Shares outstanding subject to the Put Option, multiplied
by (b) the Target Investment Value per Share. At the Put Closing, the Put Seller
will distribute to the Put Purchaser the Distributable Property-in-Kind.
SECTION 3.05 Put Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Put Option, shall take place at the principal
office of the Put Purchaser on a Business Day to be mutually agreed upon by the
Put Purchaser and Put Seller, which date shall be as soon as practicable after
receipt of the Put Notice (the "Put Closing"); provided, however, that if the
purchase of Put/Call Shares is subject to prior regulatory approval or requires
the determination of Fair Market Value, the parties will use their reasonable
best efforts to obtain the
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<PAGE> 15
necessary regulatory approvals or determination of Fair Market Value and Put
Closing shall be postponed until the expiration of five (5) Business Days after
the later of (i) all such regulatory approvals shall have been received or (ii)
the determination of Fair Market Value. At the Put Closing, the Put Seller shall
deliver to the Put Purchaser (A) the certificates representing the Put/Call
Shares duly endorsed or accompanied by stock powers executed in blank, in form
and substance satisfactory to the Put Purchaser, together with all other
documents required to be executed in connection with the sale of the Put/Call
Shares and evidence satisfactory to the Put Purchaser that the Put/Call Shares
are being transferred free and clear of all liens and encumbrances created by
the Put Seller or its Affiliates, and (B) all Distributable Property-in-Kind (it
being understood that in no event shall a Put Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put Shares and Distributable
Property-in-Kind held by such Person, such title being free and clear of all
liens and encumbrances created by it or its Affiliates, and such Person's
authority, authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
(not including any governmental or regulatory consent or approval which shall
have been received)). At the Put Closing, the Put Purchaser shall pay the Put
Price by delivery of cash by wire transfer to the account of the Put Seller. At
the Put Closing, the Put Seller will transfer the Distributable Property-in-Kind
to the Put Purchaser.
SECTION 3.06 Assignment of Put Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to an Affiliate, including RNT, the
Company or a Permitted Transferee (the "Assignee"), in which event all
references to TSC shall be deemed to refer to any Assignee and such Assignee
shall be deemed a party to this Agreement. Notwithstanding an assignment of the
Put Option by TSC or its Permitted Transferee, TSC shall remain liable under
this Article III. The rights and obligations of the Put Seller under this
Article III are not assignable without the consent of TSC.
SECTION 3.07 RNT Obligation Under Put Option. RNT shall be jointly and
severally liable for all obligations of TSC under this Article III.
SECTION 3.08 Put Postponement. Notwithstanding anything herein to the
contrary, the Put Seller may not exercise the Put Option if prohibited from
doing so under Article II or applicable law, provided the Put Purchaser and Put
Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 3.09 Exercise of Put Option Not a Transfer. Neither the
exercise by the Put Seller of the Put Option, nor the consummation of the
transaction contemplated thereby, shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
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ARTICLE IV
CALL RIGHTS
SECTION 4.01 Call Option. Subject to Section 2.04 (other than
subsection 2.04(b)), TSC or its Assignee (in either case, the "Call Purchaser")
has the right, at its sole option, to cause National Union and its Permitted
Transferees, if any (collectively the "Call Seller") to sell (the "Call Option")
to TSC or its Assignee all (but not less than all) of the Put/Call Shares held
by the Call Seller as of the date notice is given pursuant to Section 4.03.
SECTION 4.02 Call Period. The "Call Period" shall be the period
commencing on the third anniversary of the Closing and ending on the sixth
anniversary of the Closing. In addition, a Call Period shall also commence on
the occurrence of a Call Event and shall continue for ninety (90) days
thereafter.
SECTION 4.03 Call Notice. A Call Purchaser shall exercise its Call
Option by delivery of written notice to the Call Seller during the Call Period.
Upon receipt of a Call Notice in accordance with the terms hereof, the Call
Seller shall be obligated to sell all of its or their Put/Call Shares free and
clear of all liens and encumbrances created by it or its Affiliates (other than
pursuant to this Agreement) and the Call Purchaser shall be obligated to
purchase all of its or their Put/Call Shares at the Call Price in accordance
with, and subject to, the terms hereof.
SECTION 4.04 Call Price. The "Call Price" for the Put/Call Shares shall
be the product of the (a) the number of Put/Call Shares outstanding and subject
to the Call Option, multiplied by (b) the Target Investment Value per Share. At
the Call Closing, the Call Seller with distribute to the Call Purchaser the
Distributable Property-in-Kind.
SECTION 4.05 Call Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Call Option, shall take place at the principal
office of the Call Purchaser on a Business Day to be mutually agreed upon by the
Call Purchaser and the Call Seller, which date shall be as soon as practicable
days after receipt of the Call Notice (the "Call Closing"); provided, however,
that if the purchase of Put/Call Shares is subject to prior regulatory approval
or requires the determination of Fair Market Value, the parties will use their
reasonable best efforts to obtain the necessary regulatory approvals or
determination of Fair Market Value and the Call Closing shall be postponed until
the expiration of five (5) Business Days after the later of (i) all such
regulatory approvals shall have been received or (ii) the determination of Fair
Market Value. At the Call Closing, the Call Seller shall deliver to the Call
Purchaser (A) the certificates representing the Put/Call Shares duly endorsed or
accompanied by stock powers executed in blank, in form and substance
satisfactory to the Call Purchaser, together with all other documents required
to be executed in connection with the sale of the Put/Call Shares and evidence
satisfactory to the Call Purchaser that the Put/Call Shares are being
transferred free and clear of all liens and encumbrances created by the Call
Seller or its Affiliates, and (B) all Distributable Property-on-Kind (it being
understood that in no event shall a Call Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put/Call Shares and Distributable
Property-in-Kind held by such Person, such title being free and clear of all
liens and encumbrances created by it or its Affiliates, and such Person's
authority, authorization and right to enter into and consummate the
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<PAGE> 17
sale without contravention of any law or agreement, and without the need for any
third party (not including any governmental or regulatory consent or approval
which shall have been received)). At the Call Closing, the Call Purchaser shall
pay the Call Price by delivery of cash by wire transfer to the account of the
Call Seller. At the Call Closing, the Call Seller will transfer the
Distributable Property-in-Kind to the Call Purchaser.
SECTION 4.06 Assignment of Call Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to any Permitted Transferee and,
with the consent of National Union to such transfer of the Call Option in
writing (which such consent shall be in the sole discretion of National Union
and may be granted or withheld for any reason or no reason), to any other
assignee.
SECTION 4.07 Call Postponement. Notwithstanding anything herein to the
contrary, the Call Purchaser may not exercise the Call Option if prohibited from
doing so under applicable law, provided the Call Purchaser and Call Seller, as
applicable, shall take all reasonable steps to comply with such applicable law.
SECTION 4.08 Exercise of Call Option Not a Transfer. Neither the
exercise by the Call Purchaser of the Call Option, nor the consummation of the
transaction contemplated thereby shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
ARTICLE V
RIGHTS OF FIRST REFUSAL
SECTION 5.01 Right of First Refusal on Transfers.
(a) Only National Union, TSC and their respective Permitted
Transferees shall have any rights and obligations under this Article V (each a
"Selling Holder"). Subject to Sections 2.04, 5.04 and 5.05, if any Selling
Holder desires to Transfer all or any part of the ROFR Shares owned by it
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
the Selling Shareholder shall submit a written offer (the "Offer") to sell such
shares (the "Offered Shares") on terms and conditions, including price, not less
favorable than those on which the Selling Shareholder proposes to sell such
Offered Shares to the Proposed Transferee to TSC and its Permitted Transferees
(if the Selling Holder is National Union or its Permitted Transferees) or to
National Union and its Permitted Transferees (if the Selling Holder is TSC, RNT
or their Permitted Transferees); in either case, the parties to whom the Selling
Holders offer their shares are referred to in this Article V as the "Offerees".
(b) The rights of TSC or its Permitted Transferees, on the one
hand, and National Union and its Permitted Transferees, on the other hand, under
this Article V shall be in addition to and not in substitution of their
respective rights under the Put Option or Call Option, as the case may be, in
their discretion.
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(c) So long as the Put Option and Call Option shall remain in
effect, any Put/Call Shares not otherwise Transferred as permitted under Section
2.03, Article V or Article VI shall continue to be subject to Articles III and
IV, as the case may be.
(d) The Offer shall disclose the identity of the Proposed
Transferee, the number of Offered Shares proposed to be sold, the total number
of ROFR Shares owned by the Selling Shareholder, the terms and conditions
(including price) of the proposed sale, and any other material facts relating to
the proposed sale. The Offer shall further state that the Offerees may acquire,
in accordance with the provisions of this Agreement, the Offered Shares for the
price and upon the other terms and conditions, including deferred payment (if
applicable), set forth therein.
SECTION 5.02 Notice of Intent to Purchase. If an Offeree desires to
purchase the Offered Shares offered to it, it shall communicate in writing its
election to purchase to the Selling Shareholder and each other Offeree within
fifteen (15) days of the date of the Offer (each party providing such notice, a
"Purchasing Shareholder") . A Purchasing Shareholder may also, but shall not be
required to, state that it is exercising an over-allotment right (the
"Over-Allotment Right") and the number of Shares it is willing to acquire
pursuant to such right; if any Offeree does not exercise its right of first
refusal pursuant to Section 5.01(a)(i), such Shares shall be allocated pro rata
among the Purchasing Shareholders exercising the Over-Allotment Right up to the
maximum amount stated in such Purchasing Shareholder's notices. Such
communication shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, binding and enforceable agreement for the sale and purchase
of the Offered Shares.
SECTION 5.03 Offered Shares Closing. The closing of the purchase and
sale of Offered Shares pursuant to the Offer, shall take place at the principal
office of the Selling Shareholder on a Business Day to be mutually agreed to by
the Selling Shareholders and the Purchasing Shareholders (the "Offered Shares
Closing"), provided that if the purchase of Offered Shares is subject to prior
regulatory approval, the parties will use their reasonable best efforts to
obtain the necessary regulatory approvals and the Offered Shares Closing shall
be postponed until the expiration of five (5) Business Days after all such
regulatory approvals shall have been received. At the Offered Shares Closing,
the Selling Shareholder shall deliver to the Purchasing Shareholder(s) the
certificates representing the Offered Shares duly endorsed or accompanied by
stock powers executed in blank, in form and substance satisfactory to the
Purchasing Shareholder(s), together with all other documents required to be
executed in connection with the sale of the Offered Shares and evidence
satisfactory to the Purchasing Shareholder(s) that the Offered Shares are being
transferred free and clear of all liens and encumbrances created by the Selling
Shareholder or its Affiliates (it being understood that in no event shall a
Selling Shareholder be obligated to make any representations and warranties, or
to provide any indemnities, with respect to any matters other than title to the
Offered Shares held by such Person, such title being free and clear of all liens
and encumbrances created by it or its Affiliates, and such Person's authority,
authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
(not including any governmental or regulatory consent or approval which shall
have been received)). At the Offered Shares Closing a Purchasing Shareholder
shall pay the purchase price for the Offered Shares in such amount and on such
payment terms as set forth in the Offer.
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SECTION 5.04 Sale to Third Party. If the Shareholders do not purchase
all of the Offered Shares, the Offered Shares not so purchased may be sold by
the Selling Shareholder at any time within sixty (60) days after the date the
Offer was made. Any such sale shall be to the Proposed Transferee at not less
than the price and upon other terms and conditions not more favorable to the
Proposed Transferee than those specified in the Offer. If any Offered Shares are
not sold within the sixty (60)-day period or if the terms of the Offer shall
change, the Offered Shares shall be subject to renewed compliance with the
requirements of the right of first refusal pursuant to Section 5.01. Any third
party to whom Shares are sold shall become a Co-Investor and shall have no
rights or obligations under this Agreement except as provided in Sections
2.02(i), 2.03(b), 2.04 and 2.05, provided, however, that if (x) the Transfer to
a Co-Investor is a Transfer by National Union or its Permitted Transferee of
Put/Call Shares and if the price to be paid equals or exceeds the Target
Investment Value per Share (using the Call Rate as the discount rate) as of the
date set for payment, then the Put/Call Shares so Transferred shall continue to
be subject to the Call Option and the purchasing Co-Investor shall execute such
documents as are reasonably requested by TSC or its Assignee as to the existence
and enforceability of the Call Option, and (y) if the Transfer to a Co-Investor
is a Transfer by National Union or its Permitted Transferee of Put/Call Shares
and if RNT consents to such Transfer and the continuation of the Put Option and
the Call Option in writing (which such consent shall be in the sole discretion
of RNT and may be granted or withheld for any reason or no reason), then the
Put/Call Shares so Transferred shall continue to be subject to the Put Option
and the Call Option.
SECTION 5.05 Limitation as to National Union. The rights and
obligations set forth in this Article V shall not apply to any Shares purchased
by National Union other than the Put/Call Shares.
ARTICLE VI
TAG-ALONG RIGHTS
SECTION 6.01 Tag-Along Option. Subject to Sections 2.04 and 6.03 of
this Agreement, if a Shareholder (a "Disposing Shareholder") (i) decides to sell
Shares and (ii) either (x) any one or more of the other Shareholders have not
exercised their right of first refusal as provided in Article V and purchased
the Offered Shares or (y) the Shares in question are not subject to Article V,
the Disposing Shareholder will cause the intended purchaser of such Disposing
Shareholder's Shares to afford to each party hereto that is a Shareholder for
purposes of this Article VI (each, a "Non-Exercising Shareholder"), at its
option, the opportunity to sell (and will require the prospective purchaser to
purchase) the Shares held by such remaining Shareholders in the same proportion
to the number of shares sought to be disposed of by the Disposing Shareholder
and Non-Exercising Shareholders and on the same terms and conditions as those to
be sold by the Disposing Shareholder, and for the same consideration per share.
The Disposing Shareholder's obligation to afford the Non-Exercising
Shareholders, or cause the Non-Exercising Shareholders to be afforded, the
opportunity and rights set forth in this Article VI, shall be discharged if the
Non-Exercising Shareholders are given written notice which allows such
Shareholder thirty (30) days to elect to avail themselves of such rights by
written notice to the Disposing Shareholder. If any Non-Exercising Shareholder
elects to not participate or
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otherwise does not affirmatively respond within such thirty (30) day period, the
Disposing Shareholders and such Non-Exercising Shareholders who have made an
affirmative election to sell their Shares may proceed with the sale, without
regard to the application of this Article VI to the non-electing remaining
Shareholder(s).
SECTION 6.02 Sale to Third Party. Any such sales shall be at not less
than the price and upon other terms and conditions not more favorable than those
specified in the Offer. If any such Shares are not sold within a sixty (60)-day
period from the date of the Offer, or if the terms of the Offer shall change,
the Shares shall be subject to the requirements of the tag-along right pursuant
to Section 6.01. Any third party to whom Shares are sold shall become a
Co-Investor and shall have no rights or obligations hereunder except as provided
in Sections 2.02(i), 2.03(b), 2.04 and 2.05, provided, however, that if the sale
to a third party is a sale by National Union or its Permitted Transferee of
Put/Call Shares and if the price per share to be paid exceeds the Target
Investment Value per Share (using the Call Rate as the discount rate), then the
Put/Call Shares so Transferred shall continue to be subject to the Call Option
and the purchasing Co-Investor shall execute such documents as are reasonably
requested by TSC or its Assignee as to the existence and enforceability of the
Call Option.
SECTION 6.03 Limitation as to National Union. The rights and
obligations set forth in this Article VI shall not apply to any Shares purchased
by National Union other than the Put/Call Shares.
ARTICLE VII
THE COMPANY'S BOARD OF DIRECTORS; PUBLICITY
SECTION 7.01 Nominees. Each of the Shareholders (together with its
Permitted Transferees) identified below shall have the right to designate one
person to be elected to the Board of Directors of the Company, which designee
the Company shall nominate for director in accordance with its Charter and
By-Laws as follows:
(i) National Union and its Permitted Transferees, if any,
shall collectively be entitled to nominate one (1) person for election
by the Board of Directors and the Board of Directors of the Company
shall appoint such nominee to fill a vacancy on the Board of Directors
at Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by National Union or
its Permitted Transferee as a director of the Company for reelection as
a Class __ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election, and
each time members of such Class stand for election thereafter subject
to the terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(i) shall terminate at such time as National Union and
its Permitted Transferees collectively cease to hold at least 25% of
the Shares National Union acquired at Closing; and
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(ii) O&G and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall
appoint such nominee to fill a vacancy on the Board of Directors at
Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by O&G or its
Permitted Transferee as a director of the Company for reelection as a
Class __ director and shall be submitted to the Board of Directors of
the Company; the person nominated by O&G or its Permitted Transferee
shall be nominated by the Board of Directors of the Company as a
Class__ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election (or,
in case there is an earlier vacancy among the Company's directors of
any Class, and each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a
director pursuant to this Section 7.01(a)(ii) shall terminate at such
time as O&G and its Permitted Transferees collectively cease to hold at
least 25% of the Shares O&G acquired at Closing;
(iii) TSC and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and
acknowledge that RNT shall be deemed the designee of TSC; RNT or such
other person as may be designated by TSC shall be submitted for
election by shareholders as part of the management slate each time
members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(iii) shall terminate at such time as TSC and its
Permitted Transferees collectively cease to hold at least 25% of the
Shares they acquired at Closing; and
(iv) PB Capital and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and
acknowledge that Douglas McCarron ("McCarron") shall be deemed the
designee of PB Capital as of the date of this Agreement; McCarron or
such other person as may be designated by PB Capital shall be submitted
for election by shareholders as part of the management slate each time
members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(iv) shall terminate at such time as PB Capital and its
Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company; and
(v) ULLICO and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall
appoint such nominee to fill a vacancy on the Board of Directors at
Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by ULLICO and its
Permitted Transferees as a director of the Company for reelection as a
Class __ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election, and
each
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time members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(v) shall terminate at such time as ULLICO and its
Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company.
(b) The Company shall use its best efforts to cause each
nominee described in clause (a) of this Section 7.01 to be nominated to the
Board by the directors of the Company as part of the management slate and to be
submitted to the shareholders of the Company for election at each annual or
special meeting of the shareholders convened for that purpose so long as each of
them has the right to nominate a director in accordance with this Section 7.01.
SECTION 7.02 Voting for Election of Directors. Each of the
Shareholders, their respective Permitted Transferees and Co-Investors agree to
vote all shares of capital stock of the Company then owned by it to elect to the
Board of Directors of the Company any person entitled to be nominated by any of
the other Shareholders (or their respective Permitted Transferees) pursuant to
Section 7.01.
SECTION 7.03 Vacancy; Removal. Each Person who nominates a director of
the Company pursuant to Section 7.01 shall have the right to cause that person
to resign as a director of the Company. Any vacancy on the Board of Directors of
the Company created by the resignation, removal, incapacity or death of any
person nominated under this Article VII shall be filled by another person
nominated by the party who nominated the director creating such vacancy or by
such party's successors and assigns. The Shareholders agree to vote their
respective shares of Common Stock in accordance with such new designation, and
any such vacancy shall not be filed in the absence of a new nomination in
accordance with the foregoing sentence.
SECTION 7.04 Continuation as Director. Upon the occurrence of any event
that results in a Shareholder no longer being entitled to nominate a director
under Section 7.01, the Person so nominated shall continue as a director of the
Company until his successor is nominated, elected and qualifies.
SECTION 7.05 Publicity. To the extent that any of the Company or any
Shareholder intends to issue any press release or make any similar public
announcement or communication regarding the execution or performance of this
Agreement or the other Transaction Documents, the transactions contemplated
hereby and thereby, and the ongoing business relationship between the parties,
which release, announcement or disclosure mentions any of such parties, the
party making the disclosure shall consult with each of the parties so named in
such disclosure; provided, however, that no party shall be restrained, after
consultation with the other parties, to the extent such consultation is
feasible, from making such disclosure as it shall be required to make by
applicable law or by applicable regulations of any regulatory body or securities
exchange.
SECTION 7.06 Observer Rights for Shareholder Designee. The Company
shall, for so long as PB Capital and its Affiliates own or control at least 2.5%
of the outstanding shares
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of Common Stock, permit one (1) individual designated by PB Capital and
acceptable to the Company to attend and observe meetings of the Board. The
Company shall, for so long as ULLICO and its Affiliates own or control at least
2.5% of the outstanding shares of Common Stock, permit one (1) individual
designated by ULLICO and acceptable to the Company to attend and observe
meetings of the Board. Each designee described in the preceding two sentences
shall have the right to receive timely notices of each meeting of the Board of
Directors and all written information provided by the Company to the Board. Such
designee shall have no right to vote on any matter presented to the Board, but
otherwise shall have all rights of a Director, including: (a) the right to
examine books and records of the Company; (b) the right to review and
participate in all discussions of the Board including, without limitation,
capital or equity programs; (c) the right to receive, upon request, any
information relating to the Company, and to any Affiliates thereof; and (d) the
right to meet on a regular basis with the management of the Company, or any
Affiliates thereof; provided that any such designee shall agree to be bound by
all policies relating to confidentiality and material non-public information
which are applicable to the Directors and senior executive officers of the
Company.
SECTION 7.07 Subscription Rights.
(a) If the Board of Directors of the Company shall authorize
the issuance of New Securities, then, prior to each such issuance of New
Securities, the Company shall offer to each Shareholder and its Permitted
Transferees a Pro Rata Share of such New Securities.
(b) Any offer of New Securities made to any Shareholder or
Permitted Transferee under this Section 7.07 shall be made by notice in writing
(the "Subscription Notice") at least ten (10) Business Days prior to the date on
which the meeting of the Board is held to authorize the issuance of such New
Securities. The Subscription Notice shall set forth (i) the number of New
Securities proposed to be issued and the terms of such New Securities, (ii) the
consideration (or manner of determining the consideration), if any, for which
such New Securities are proposed to be issued and the terms of payment, (iii)
the number of New Securities offered to each Shareholder and Permitted
Transferee in compliance with the provisions of this Section 7.07 and (iv) the
proposed date of issuance of such New Securities. Not later than twenty (20)
Business Days after its receipt of a Subscription Notice, each Shareholder and
Permitted Transferee shall notify the Company in writing whether it elects to
purchase all or any portion of the New Securities offered to it pursuant to the
Subscription Notice. If a Shareholder or Permitted Transferee shall elect to
purchase any such New Securities, the New Securities which it shall have elected
to purchase shall be issued and sold to such person by the Company at the same
time and on the same terms and conditions as the New Securities are issued and
sold to third parties. If, for any reason, the issuance of New Securities to
third parties is not consummated, the right of the Shareholders and Permitted
Transferees to their respective Pro Rata Shares of such issuance shall lapse,
subject to their ongoing subscription right with respect to issuances of New
Securities at later dates or times.
(c) The Company represents and covenants to each Shareholder
and Permitted Transferee that (i) upon issuance, all the shares of New
Securities sold to such person pursuant to this Section 7.07 shall be duly
authorized, validly issued, fully paid and nonassessable and will be approved
(if outstanding securities of the Company of the same type
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<PAGE> 24
are at the time already approved) for listing on the American Stock Exchange or
for quotation or listing on the principal trading market for the securities of
the Company at the time of issuance, (ii) upon delivery of such shares, they
shall be free and clear of all claims, Liens, encumbrances, security interests
and charges of any nature and shall not be subject to any preemptive right of
any stockholder of the Company and (iii) in connection with any such issuance,
the Company shall take such actions as are specified in Section 3.01(q) of the
Securities Purchase Agreement with respect to such shares.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Injunctive Relief. The parties hereto acknowledge and
agree that it will be impossible to measure the damages that would be suffered
if any party fails to comply with the provisions of this Agreement that it is
required to comply with and, in the event of any such failure, the non-breaching
parties will have the right to obtain specific performance of the breaching
party's obligations under this Agreement and to obtain immediate injunctive
relief. These rights shall be in addition to, and not in substitution of, any
other rights that any non-breaching party may have in law or in equity.
SECTION 8.02 Entire Agreement. Each party expressly acknowledges and
agrees that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Registration Rights Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section 13 (d) of the Exchange
Act), or otherwise act together, with respect to the Company or its securities.
SECTION 8.03 Binding Effect; Benefit. This Agreement shall inure to the
benefit and be binding upon the parties hereto and their Permitted Transferees,
Co-Investors and assignees to the extent set forth in this Agreement; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto and their
Permitted Transferees, Co-Investors and assignees; and, in the case of a natural
person, upon his successors, assigns, heirs, legatees, distributees, estates,
executors, administrators, personal representatives and other legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement. Nothing in this Agreement, expressed or implied, shall
confer on any party or Permitted Transferee, Co-Investor and assignee; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives, any greater rights, remedies, obligations or
liabilities than as set forth in this Agreement.
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SECTION 8.04 Assignability. Except as set forth in this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any party hereto or their
Permitted Transferees or assignees.
SECTION 8.05 Amendment; Waiver; Termination. No provision of this
Agreement may be waived except by an instrument in writing signed by the party
against whom the waiver is to be effective. No provision of this Agreement may
be amended or modified except by an instrument in writing signed by all of the
parties who would have any rights or obligations under the relevant provision
the Agreement. This Agreement shall terminate on the earlier of (i) the date
that National Union or its Permitted Transferee shall no longer Beneficially Own
any Put/Call Shares, or (ii) the sixth anniversary of the Closing.
SECTION 8.06 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald S. Tutor
Facsimile: (818) 367-9574
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with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: Christopher H. Lee
Chris Saxman
Facsimile: (212) 458-2250
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John P. Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia
Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
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BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
Washington, D.C. 2001
Attn: Robert Kennedy
Facsimile: (202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: Alan J. Barton
Facsimile: (213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 8.07 Fees and Expenses. Each party shall pay its own fees and
expenses (including fees, expenses and disbursements of counsel) in connection
with this Agreement and the performance of each parties rights, remedies and
obligations hereunder.
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SECTION 8.08 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 8.09 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
SECTION 8.10 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York. Each of the parties hereto irrevocably submits to
the personal exclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each of the parties further agree that service of any process, summons, notice
or document hand delivered or sent by registered mail to such party's respective
address set forth in Section 8.06 will be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction as set forth in the immediately preceding
sentence. Each of the parties hereto irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in such
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum.
SECTION 8.11 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential, punitive or exemplary damages in respect of this
Agreement under any circumstances or for any reason. Consequential damages are,
without limitation, lost profits, lost revenue and the like but do not include
the actual costs incurred in obtaining substitute performance where there has
been a failure to perform an obligation under any provision of this Agreement.
SECTION 8.12 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 8.13 Amendments to Laws. Any reference to a section, form, rule
or regulation of the Securities Act, the Exchange Act or the Code, includes any
successor section, form, rule, regulation or law.
SECTION 8.14 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
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<PAGE> 29
SECTION 8.15 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
SECTION 8.16 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by any other party as to such
tax consequences.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 30
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by himself or its authorized officer as of the day and year first
above written.
PERINI CORPORATION
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:____________________________
Name:__________________________
Title:_________________________
TUTOR-SALIBA CORPORATION
By:____________________________
Name: Ronald N. Tutor
Title: President and Chief Executive Officer
_______________________________
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:_____________________________
Name:___________________________
Title:__________________________
O&G INDUSTRIES, INC.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:_____________________________
Name:___________________________
Title:__________________________
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<PAGE> 31
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ________________________
Name: Murray A. Indick
Title: Partner, General Counsel and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ____________________
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P., its investment
advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ____________________
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
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<PAGE> 32
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:_________________________
Name:_______________________
Title:______________________
29
<PAGE> 1
Exhibit (e)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ________ __, 2000 by and
among Perini Corporation, a Massachusetts corporation (together with its
successors, the "Company"), Tutor-Saliba Corporation, a California corporation
("TSC"), Ronald N. Tutor ("RNT"), National Union Fire Insurance Company of
Pittsburgh, PA, a Pennsylvania corporation ("National Union"), and O&G
Industries, Inc., a Connecticut corporation (("O&G"), BLUM Capital Partners,
L.P., a California limited partnership ("BLUM"), PB Capital Partners, L.P., a
Delaware limited partnership ("PB Capital"), The Common Fund for Non-Profit
Organizations, a New York non-profit corporation ("The Common Fund"), and The
Union Labor Life Insurance Company, a Maryland corporation acting on behalf of
its Separate Account P ("ULLICO" and collectively with TSC, RNT, AIG, O&G, BLUM
and PB Capital the "Shareholders").
WHEREAS, pursuant to the terms and conditions of the Securities
Purchase Agreement dated as of February 5, 2000 (the "Securities Purchase
Agreement"), among the Company and the Shareholders, TSC, National Union and O&G
shall acquire shares of common stock, par value $1.00 per share, of the Company
on the Closing (as defined in the Securities Purchase Agreement), in the amounts
set forth opposite each name on Exhibit 2.01 thereto;
WHEREAS, pursuant to the terms of certain exchange agreements dated as
of _________ __, 2000, between the Company and certain holders of the Company's
Series B Preferred Stock, such holders have agreed to exchange their Series B
Preferred Stock for Common Stock of the Company; and
WHEREAS, the Company has agreed with the Shareholders to provide
certain rights as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, the
following terms used in this Agreement shall have the meanings specified below.
(a) "BLUM" has the meaning set forth in the introductory paragraph
hereof.
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<PAGE> 2
(b) "Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City are required or authorized by law to
close.
(c) "The Common Fund" has the meaning set forth in the introductory
paragraph hereof.
(d) "Common Stock" means the common stock, par value $1.00 per share,
of the Company.
(e) "Company" has the meaning set forth in the introductory paragraph
hereof.
(f) "Deferral Period" means the period during which the Company has
elected to postpone the sale or other transfer of Registrable Securities by the
holders thereof pursuant to the applicable terms of Article 2 of this Agreement
or any other period during which a stop order or other order suspending the
effectiveness of a Registration Statement is in effect.
(g) "Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Shares shall have ceased to be
Registrable Securities.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
(i) "Managing Underwriters" means the investment banking firm or firms
that shall manage or co-manage an Underwritten Offering.
(j) "National Union" has the meaning set forth in the introductory
paragraph hereof.
(k) "Notice Holder" means a holder of Registrable Securities who has
given notice of the intention to distribute such holder's Registrable Securities
in accordance with Section 2.1(d), 2.2 or 2.3, as the case may be.
(l) "O&G" has the meaning set forth in the introductory paragraph
hereof.
(m) "PB Capital" has the meaning set forth in the introductory
paragraph hereof.
(n) "Person" means an individual, a corporation, a partnership, a
limited liability partnership, a limited liability company, an association, a
trust or any other entity
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<PAGE> 3
or organization, including a government or political subdivision or an agency or
instrumentality thereof.
(o) "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(p) "Public Sale" means any sale of Shares to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (or any successor
provision then in effect) adopted under the Securities Act.
(q) "Registrable Securities" means Shares until the date (if any) when
(i) such Shares shall have been sold or transferred pursuant to a Public Sale,
and transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company or (ii) if
requested to do so, the Company would be required to deliver certificates for
such Shares not bearing a legend restricting further transfer (other than
legends required under Section 2.06 of the Shareholders' Agreement, if
applicable), and, in each case, subsequent sale or other disposition of such
Shares shall not require registration or qualification under the Securities Act
or any similar state or foreign law then in force.
(r) "Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
amendments and supplements to such Prospectus, all exhibits, and all information
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
(s) "Restricted Securities" means the Shares; provided that particular
Shares shall cease to be Restricted Securities when such securities shall have
(x) been sold or transferred pursuant to a Public Sale, or (y) been otherwise
transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force or (z)
ceased to be outstanding.
(t) "RNT" has the meaning set forth in the introductory paragraph
hereof.
(u) "Rule 144" means Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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<PAGE> 4
(v) "Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(w) "SEC" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
(x) "Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such similar Federal statute.
(y) "Securities Purchase Agreement" has the meaning set forth in the
recitals.
(z) "Selling Period" means the period during which a holder of
Registrable Securities shall be entitled to sell its Shares pursuant to a
Prospectus under the applicable provision of Article 2 of this Agreement.
(aa)"Shares" means shares of Common Stock of the Company (including
shares of Common Stock issued from time to time on conversion or exchange of
securities of the Company), currently held, or subsequently acquired, by a
Shareholder or transferee of, or successor to, a Shareholder, as adjusted for
any other shares of Common Stock or securities issued in respect of such shares
or securities because of stock splits, reverse stock splits, stock dividends,
reclassifications, recapitalizations, merger, consolidation, share exchange or
similar events.
(bb)"Shareholders" has the meaning set forth in the introductory
paragraph hereof.
(cc)"Shareholders' Agreement" means that certain Shareholders'
Agreement dated even date herewith among the Shareholders and the Company.
(dd)"Special Counsel" means any law firm retained from time to time by
the holders of a majority of the Registrable Securities to be sold pursuant to a
Registration Statement or during any Selling Period, as shall be specified by
such holders to the Company; provided that at no time there shall be more than
one Special Counsel the fees and expenses of which will be paid by the Company
pursuant to Section 2.4.
(ee)"ULLICO" has the meaning set forth in the introductory paragraph
hereof.
(ff)"Underwritten Offering" means a registration in which Registrable
Securities are sold or to be sold to one or more underwriters for reoffering to
the public.
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<PAGE> 5
Each of the following terms is defined in the Section set forth
opposite such term:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Demand Holders" 2.2(a)
"Demand Registration" 2.2(a)
"Filing Date" 2.1(a)
"Initial Shelf Registration" 2.1(a)
"Initiating Holders" 2.1(a)
"Piggyback Registration" 2.3(a)
"Saleable Number" 3.1(a)
"Shelf Registration" 2.1(a)
"Subsequent Shelf Registration" 2.1(b)
</TABLE>
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later than the date
(the "Filing Date") that is thirty (30) days, in the case of a Registration
Statement on Form S-3 (or successor or replacement form) and sixty (60) days, in
the case of a Registration Statement on Form S-1 (or other available form),
after receipt by the Company of a written request by the holder or holders of a
___% of the Registrable Securities (the "Initiating Holders"), the Company shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
(a "Shelf Registration") registering the resale from time to time by the holders
of all of the Registrable Securities (the "Initial Shelf Registration"). The
Registration Statement for any Shelf Registration shall be on Form S-3 or
another available form permitting registration of such Registrable Securities
for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more Underwritten Offerings). The Company
shall use all commercially reasonable best efforts to cause the Initial Shelf
Registration to become effective under the Securities
5
<PAGE> 6
Act as promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the end of the
Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use all commercially reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty days of such cessation of effectiveness
amend the Shelf Registration in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration covering all of the Registrable Securities (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Company shall use all commercially reasonable best efforts to cause the
Subsequent Shelf Registration to become effective as promptly as is practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by any holder of the
Registrable Securities covered by such Registration Statement or by any Managing
Underwriter of such Registrable Securities.
(d) Each holder of Registrable Securities agrees that if it wishes to
sell any Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2.1(d). Each
holder of Registrable Securities agrees to give written notice to the Company at
least six (6) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such holder intends to begin such distribution and any information with
respect to such holder and the intended distribution of Registrable Securities
by such holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such holder;
provided that no holder may give such notice unless such notice, together with
notices given by other holders of Registrable Securities joining in such notice
or giving similar notices, covers at least ___________ Shares. As promptly as is
practicable after the date such notice is provided, and in any event within five
(5) Business Days after such date, the Company shall either:
(i) (A) prepare and file with the SEC a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or any other required document, so that such
Registration Statement 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, and
so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain any
untrue statement of a material
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<PAGE> 7
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; (B) provide each Notice
Holder a copy of any documents filed pursuant to Section 2.1(d)(i)(A);
and (C) inform each Notice Holder that the Company has complied with
its obligations in Section 2.1(d)(i)(A) and that the Registration
Statement and related Prospectus may be used for the purpose of selling
all or any of such Registrable Securities (or that, if the Company has
filed a post-effective amendment to the Shelf Registration which has
not yet been declared effective, the Company will notify each Notice
Holder to that effect, will use all commercially reasonable best
efforts to secure the effectiveness of such post-effective amendment
and will immediately so notify each Notice Holder when the amendment
has become effective); each Notice Holder will sell all or any of such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the sixty (60) day period in the case of
registration on Form S-3, or the ninety (90) day period in the case of
registration on any other form available for registration, commencing
with the date on which the Company gives notice (such sixty (60) or
ninety (90) day period, as the case may be, to be calculated without
regard to any Deferral Period), pursuant to Section 2.1(d)(i)(C), that
the Registration Statement and Prospectus may be used for such purpose;
each Notice Holder agrees that it will not sell any Registrable
Securities pursuant to such Registration Statement or Prospectus after
such Selling Period without giving a new notice of intention to sell
pursuant to Section 2.1(d) hereof and receiving a further notice from
the Company pursuant to Section 2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a period of time due to pending
material corporate developments or similar material events that have
not yet been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company, the Company shall
deliver a certificate in writing, signed by its Chief Executive
Officer, Chief Financial Officer or General Counsel, to the Notice
Holders, the Special Counsel and the Managing Underwriters, if any, to
the effect of the foregoing and, upon receipt of such certificate, each
such Notice Holder's Selling Period will not commence until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 2.1(d)(i)(A) hereof, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use all commercially reasonable best efforts to ensure
that the use of the Prospectus may be resumed, and the Selling Period
will commence, upon the earlier of (x) public disclosure of such
pending material corporate development or similar material event or (y)
a determination by the Company that, in the judgment of the Company,
public disclosure of such material corporate development or similar
material event would not be prejudicial to the Company. Notwithstanding
the foregoing, the Company shall not under any circumstances be
entitled to exercise its right under Section 2.1(d)(ii) to defer the
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<PAGE> 8
commencement of a Selling Period more than one time in any three
(3)-month period or two times in any twelve (12)-month period, and the
period in which a Selling Period is suspended shall not exceed fifteen
(15) days unless the Company shall deliver to such Notice Holders a
second certificate to the effect set forth above, which shall have the
effect of extending the period during which such Selling Period is
deferred by up to an additional fifteen (15) days, or such shorter
period of time as is specified in such second certificate. In no event
shall the Company be permitted to extend the period during which such
Selling Period is deferred from and after the date a Notice Holder
provides notice to the Company in accordance with Section 2.1(d)(ii) of
its intention to distribute Registrable Securities beyond such thirty
(30)-day period.
SECTION 2.2 Demand Registration.
(a) At any time during the Effectiveness Period, any holder or holders
of Registrable Securities (the "Demand Holders") may request in writing that the
Company file a Registration Statement under the Securities Act covering the
registration of all or a portion of the Registrable Securities then held by the
Demand Holders (a "Demand Registration"). After the date on which the Company
receives such a request, the Company shall use all commercially reasonable best
efforts (i) to file a Registration Statement under the Securities Act on the
appropriate form (using Form S-3 or other "short form," if available and advised
by counsel) covering all of the Registrable Securities specified by the holders
within forty-five (45) days after the date of such request (thirty (30) days in
the case of a Form S-3) and (ii) to cause such Registration Statement to be
declared effective within sixty (60) days (forty-five (45) days in the case of a
Form S-3) after the filing referenced in clause (i) above. The Company will keep
the Demand Registration current and effective for at least one hundred twenty
(120) days (such one hundred twenty (120) day period to be calculated without
regard to any Deferral Period), or a shorter period during which the holders
shall have sold all Registrable Securities covered by the Demand Registration.
(b) In the event a holder of Registrable Securities makes a demand to
register pursuant to Section 2.2 and later determines not to sell Registrable
Securities pursuant to such registration, the Company shall cease all efforts to
secure registration for such holder's Registrable Securities and shall take all
action necessary to prevent the commencement of effectiveness for any
registration that it is preparing or has prepared in connection with the
withdrawn request, and such holder's Demand Registration shall be reinstated as
if never exercised; provided, however, that such holder withdrawing such demand
shall pay all of the costs and expenses incurred by the Company in connection
with such withdrawn demand, unless the withdrawal is a result of a breach by the
Company of its obligations under this Agreement.
(c) National Union shall be entitled to two (2) Demand Registrations
pursuant to Section 2.2, provided that it shall not be entitled to exercise more
than one (1) Demand Registrations during any twelve (12) month period. TSC, O&G,
ULLICO and BLUM (together with The Common Fund and PB Capital) shall each have
one (1) Demand Registration right pursuant to Section 2.2.
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<PAGE> 9
(d) Notwithstanding the provisions of Section 2.2, if the Company is
requested to file any registration under Section 2.2:
(i) The Company shall have the right to defer the filing
of a Registration Statement relating to a Demand Registration
during the ninety (90) days following the effective date of any
other Registration Statement pertaining to an underwritten public
offering of securities for the account of the Company or security
holders of the Company or such earlier date as such distribution
shall be completed; or
(ii) The Company shall have the right to defer the filing
after receipt of the Demand Holders request or if a Registration
Statement relating to a Demand Registration has already been
filed, the Company may cause the Registration Statement to be
withdrawn and its effectiveness to be terminated, or may postpone
amending or supplementing the Registration Statement, until the
Board of Directors determines that the circumstances requiring the
withdrawal or postponement no longer exist, if, in the judgment of
the Company, (i) it is advisable to suspend use of the Prospectus
for a period of time due to pending material corporate
developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company or (ii) the Board of
Directors of the Company determines in good faith that there is a
valid business purpose or reason for delaying such filing or
effectiveness. The Company shall deliver a certificate in writing,
signed by its Chief Executive Officer, Chief Financial Officer or
General Counsel, to the holders of Registrable Securities, the
Special Counsel and the Managing Underwriters, if any, to the
effect of the foregoing and, upon receipt of such certificate,
each such holder's Selling Period will not commence until such
holder's receipt of copies of a supplemented or amended
Prospectus, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use
all commercially reasonable best efforts to ensure that the use of
the Prospectus may be resumed, and the Selling Period will
commence, upon the earlier of (x) public disclosure of such
pending material corporate development or similar material event
or (y) a determination by the Company that, in the judgment of the
Company, public disclosure of such material corporate development
or similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section
2.2(d)(ii) to defer the commencement of a Selling Period more than
sixty (60) days during any twelve (12)-month period.
(e) A Demand Registration shall not count as such until a Registration
Statement becomes effective; provided, that if, after it has become effective,
the offering pursuant to the Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental authority, such registration shall be deemed not to have been
effected unless such stop order, injunction or other order shall
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<PAGE> 10
subsequently have been vacated or otherwise removed within fifteen (15) days of
the imposition thereof.
(f) The Demand Holders shall select the underwriter or underwriters
(including Managing Underwriter) of any offering pursuant to a Demand
Registration, subject to the approval of the Company, which approval shall not
be unreasonably withheld.
SECTION 2.3 Piggyback Registration.
(a) Subject to applicable stock exchange rules and securities
regulations, at least thirty (30) days prior to any public offering of any of
its capital stock of the Company for the account of the Company or any other
Person (other than a Registration Statement on Form S-4 or S-8 (or any successor
forms under the Securities Act), relating solely to employee benefit plans or
any transaction governed by Rule 145 of the Securities Act or Registration
Statement filed pursuant to the Shelf Registration under Section 2.1 of this
Agreement or any substantially comparable shelf registration right granted by
the company to any shareholder not a party to this Agreement), the Company shall
give written notice of such proposed filing and of the proposed date thereof to
the holders and if, on or before the twentieth (20th) day (or such earlier day
specified if registration is for the account of any other Person) following the
date on which such notice is given, (i) a Registration Statement covering the
sale of all of the Registrable Securities is not then effective and available
for sales thereof by the holders and (ii) the Company shall receive written
requests from any holders of Registrable Securities requesting that the Company
include among the securities covered by such Registration Statement any or all
of the Registrable Securities for offering, specifying the amount of Registrable
Securities that such holder intends to sell and such holder's intended method of
distribution, the Company shall include such Registrable Securities in such
Registration Statement, if filed, so as to permit such Registrable Securities to
be sold or disposed of in the manner and on the terms of the offering thereof
set forth in such request. Each such registration shall hereinafter be called a
"Piggyback Registration." The Company shall select the underwriter or
underwriters, including Managing Underwriter, of any offering pursuant to a
Registration Statement filed pursuant to this Section 2.3, provided that any
selected underwriter shall be a well-recognized firm in good standing of
national reputation.
(b) Upon receipt of a request for Piggyback Registration, the Company
shall use all commercially reasonable best efforts to cause all Registrable
Securities which the Company has been requested to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Holder; provided, however, that the Company shall have the
right, prior to the effective date of the Registration Statement, to postpone or
withdraw such a registration effected pursuant to this Section 2.3 without
obligation to the holders, other than the Company's obligation to pay the
expenses incurred by the holders in connection with the registration; provided,
further, that if the registration is pursuant to a Demand Registration, the
Company shall only have the right to defer the registration in accordance with
Section 2.2(d). In the event a holder of Registrable Securities makes a demand
to register pursuant to this Section 2.3 and later determines not to sell
Registrable
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<PAGE> 11
Securities pursuant to such registration, the Company shall cease all efforts to
secure registration for such holder's Registrable Securities.
(c) If such registration being effected pursuant to a Piggyback
Registration is a Company registration or a registration pursuant to an
underwritten offering, the shares of Common Stock available for sale shall be
allocated in accordance with Article III of this Agreement.
(d) No registration effected under Section 2.3 shall relieve the
Company of its obligation to effect a demand registration under Section 2.2, nor
shall any registration under this Section 2.3 be deemed to have been effected
under Section 2.2.
ARTICLE III
UNDERWRITERS' CUTBACK
SECTION 3.1 Underwriter's Cutback.
(a) If, in connection with any underwritten public offering for the
account of the Company, the Managing Underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock (the "Saleable Number") which
may be included in the Registration Statement that is less than all of the
shares of Common Stock sought to be registered because, in such Managing
Underwriter(s)' commercially reasonable judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the number of shares of Common Stock offered shall be limited to the Saleable
Number. The Company will promptly so advise each holder of Registrable
Securities that has requested registration, and will include shares of Common
Stock in such registration in the following order of priority: (A) the shares of
Common Stock the Company desires to include in such registration up to the total
number of shares sought to be registered; (B) the Registrable Securities that
the holders desire to include in such registration up to the total sought to be
registered; and (C) the balance of securities, if any, to be registered by other
holders of the Company's Common Stock to the extent such security holders have
piggyback registration rights and have sought to include their securities in
such registration, in each case until the aggregate number of shares of Common
Stock included in such registration is equal to the number thereof that, in the
opinion of such Managing Underwriter(s), can be sold without adversely affecting
the marketability thereof.
(b) If, in connection with any underwritten public offering for the
account of any security holder of the Company exercising its demand registration
right (other than the holder of Registrable Securities), the Saleable Number
which may be included in the Registration Statement is less than all of the
shares of Common Stock sought to be registered because, in the Managing
Underwriter(s)' commercially reasonable judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the number of securities offered shall be limited to the Saleable Number. The
Company will promptly so advise each holder of Registrable Securities that has
requested registration, and will include
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in such registration in the following order of priority: (A) the shares of
Common Stock sought to be registered by holders of the Company's Common Stock
who have exercised their demand registration right (to the extent the holders
exercising such rights possessed such rights prior to the date hereof); (B) the
Registrable Securities that the holders desire to include in such registration
up to the total sought to be registered and the shares of Common Stock sought to
be registered by holders of the Company's Common Stock who have exercised their
demand registration right (to the extent the holders exercising such rights
obtained such rights on or after the date hereof); (C) any securities to be
registered for the account of the Company together with the balance of
securities, if any, to be registered by other holders of the Company's Common
Stock to the extent such security holders have piggyback registration rights and
have sought to include their securities in such registration, in each case until
the aggregate number of shares of Common Stock included in such registration is
equal to the number thereof that, in the opinion of such Managing
Underwriter(s), can be sold without adversely affecting the marketability
thereof.
(c) If, in connection with any underwritten public offering for the
account of the holders of Registrable Securities pursuant to their Demand
Registration right, as the case may be, the Saleable Number which may be
included in the Registration Statement is less than all of the shares of Common
Stock sought to be registered because, in such underwriter(s)' commercially
reasonable judgment, marketing or other factors dictate such limitation is
necessary to facilitate public distributions, then the Company will promptly so
advise each holder of Registrable Securities that has requested registration,
and will include in such registration in the following order of priority: (A)
the Registrable Shares that the holders who have exercised their Demand
Registration right desire to include in such registration; (B) the shares of
Registrable Securities sought to be registered by holders exercising their
Piggyback Registration rights; and (C) any securities to be registered for the
account of the Company together with the balance of securities, if any, to be
registered by other holders of the Company's Common Stock to the extent such
security holders have piggyback registration rights and have sought to include
their securities in such registration, in each case until the aggregate number
of shares of Common Stock included in such registration is equal to the number
thereof that, in the opinion of such Managing Underwriter(s), can be sold
without adversely affecting the marketability thereof.
(d) If the number of shares of Common Stock that the Managing
Underwriter(s) advise the Company can be registered is less than all of the
Registrable Securities that the holders have sought to register each holder
requesting registration pursuant to rights granted under this Agreement shall be
allocated the number of Registrable Securities eligible for registration pro
rata in proportion to the number of Registrable Securities sought to be
registered under the applicable Registration Statement without regard to the
securities held by holders who have not sought registration.
ARTICLE IV
REGISTRATION PROCEDURES
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SECTION 4.1 Registration Procedures. In connection with the Company's
registration obligations under Article II hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on the form specified in this Agreement or, if no form
has been specified, on any appropriate form under the Securities Act available
for the sale of the Registrable Securities by the holders thereof in accordance
with the intended method or methods of distribution thereof, and use all
commercially reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; provided, that
before filing any such Registration Statement or Prospectus or any amendments or
supplements thereto (other than documents that would be incorporated or deemed
to be incorporated therein by reference and that the Company is required by
applicable securities laws or stock exchange requirements to file) the Company
shall furnish to the holders of Registrable Securities, the Special Counsel and
the Managing Underwriters of such offering, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
holders of Registrable Securities, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be incorporated
by reference therein and that the Company is required by applicable securities
laws or stock exchange requirements to file) to which the holders of a majority
of the Registrable Securities covered by such Registration Statement or the
Special Counsel shall reasonably object in writing within two full Business Days
after receipt of such materials.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Article 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the Special
Counsel and the Managing Underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement, an amendment or a
post-effective amendment to a Registration Statement has been filed with the
SEC, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional
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<PAGE> 14
information, and of the contents of such request, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, provided that the
Company shall not be required to disclose such fact or event if such fact or
event has not been, and is not required to be, publicly disclosed, and (vi) of
the Company's determination that a post-effective amendment to a Registration
Statement or supplement to a Prospectus would be appropriate.
(d) Use all commercially reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by a holder of Registrable Securities, the
Special Counsel, the Managing Underwriters, if any, or requested by the holders
of a majority of the Registrable Securities being sold, (i) promptly incorporate
in a Prospectus supplement or amendment or post-effective amendment to a
Registration Statement such information as the holders of Registrable
Securities, the Special Counsel, the Managing Underwriters, if any, or such
holders, in connection with any offering of Registrable Securities, agree should
be included therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such amendment or post-effective
amendment as promptly as is practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, that the Company shall not be required to
take any actions under this Section 4.1(e) that are not, in the reasonable
opinion of counsel for the Company, in compliance with or required by applicable
law.
(f) Furnish to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, without charge, at least
one conformed copy of the Registration Statement or Statements and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be
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incorporated therein by reference and all exhibits (unless requested in writing
by such holder, Special Counsel or Managing Underwriter).
(g) Deliver to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register
or qualify or cooperate with the selling holders of Registrable Securities, the
Managing Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling holder or Managing Underwriter reasonably requests in writing to the
Company; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would subject it
to general service of process in suits or to taxation in any such jurisdiction
where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of a selling holder of
Registrable Securities, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the selling holder or
holders thereof or the Managing Underwriters, if any, to consummate the
disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, promptly notify the holders, Special Counsel and any Managing
Underwrite to discontinue use of such Registration Statement; promptly prepare
and file
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an amendment or post-effective amendment to each Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document (such as a Current Report on Form
8-K) that would be incorporated by reference into the Registration Statement so
that the Registration Statement shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use all commercially
reasonable best efforts to cause it to become effective as promptly as is
practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an underwritten offering, those
reasonably requested by the Managing Underwriters, if any, or the holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
holders of a majority of the Registrable Securities being sold) addressed to
each of the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and Managing Underwriters; (iii) obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to be
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to each of
the Managing Underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with Underwritten Offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the holders of a majority of the
Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any
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customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the holders of Registrable Securities being sold, any
Managing Underwriter participating in any disposition of Registrable Securities,
if any, and any attorney or accountant retained by such selling holders or
underwriter, financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the executive
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, Managing
Underwriter, attorney or accountant in connection with such disposition; subject
to reasonable written assurances by each such person that such information will
only be used in connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten offering,
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the selling holders may request.
(o) Use all commercially reasonable best efforts to provide a CUSIP
number for the Registrable Securities not later than the effective date of the
registration.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Company's Common Stock is then listed no later than the date the
Registration Statement is declared effective and, in connection therewith, to
the extent applicable, to make such filings under the Exchange Act (e.g., the
filing of a Registration Statement on Form 8-A) and to have such filings
declared effective thereunder.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
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(r) Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such Registration Statement.
ARTICLE V
HOLDER'S OBLIGATIONS
SECTION 5.1. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by becoming an owner
or transferee of any Registrable Securities, that no holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such holder has furnished the Company with any applicable notice required
pursuant to Article 2 hereof (including the information required to accompany
such notice) and, promptly after the Company's request, such other information
regarding such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not misleading. Any sale of any
Registrable Securities by any holder shall constitute a representation and
warranty by such holder that the information relating to such holder and its
plan of distribution is as set forth in the Prospectus delivered by such holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
(b) The Company agrees (x) that if any holder of Registrable Securities
shall send a written notice to the Company of an intended distribution of
Registrable Securities under the Shelf Registration pursuant to Section 2.1(d)
or the Demand Registration pursuant to Section 2.2, the Company shall not sell,
make any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
securities during the period from first day of the applicable Selling Period
until the date that is 90 days after the date when such holder shall have made
such distribution of Registrable Securities under the Shelf Registration or
Demand Registration, as the case may be, as the holder or Managing Underwriter
(in the case of an Underwritten Offering) shall advise the Company (provided,
that if the holder or Managing Underwriter shall fail to advise the Company of
any such date prior to the end
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of the applicable Selling Period, such period shall end on the last day of the
applicable Selling Period), except (i) as part of such registration, (ii)
pursuant to registrations on Form S-4 or S-8 or any successor or similar forms
thereto or (iii) as otherwise permitted by the Managing Underwriter of such
offering (if any), and (y) to use all commercially reasonable best efforts to
cause each holder of its equity securities or any securities convertible into or
exchangeable or exercisable for any of such securities, in each case purchased
from the Company at any time after the date of this Agreement (other than in a
public offering) to agree not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of such securities during such period except as part of such
underwritten registration; provided, that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such holder and such holder's intended
method of distribution.
(c) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, upon being notified by the Company promptly discontinue use of such
Registration Statement until the Company in accordance with its obligations
under this Agreement prepares and files an amendment or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain any untrue statement
of a material fact or omit to state any material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder.
(d) Deliver to prospective investors and investors copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto in
accordance with the Securities Act and applicable state securities laws.
ARTICLE VI
EXPENSES
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SECTION 6.1 Registration Expenses. All fees and expenses incident to
the Company's performance of or compliance with this Agreement shall be borne by
the Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) with respect to compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of Special Counsel in connection with Blue Sky qualifications of
the Registrable Securities laws of such jurisdictions as the Managing
Underwriters, if any, or holders of a majority of the Registrable Securities
being sold may designate)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depositary Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the Special Counsel
or the holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for the Company and the Special
Counsel in connection with the Registration, (v) fees and disbursements of all
independent certified public accountants (including the expenses of any special
audit and "comfort" letters required by or incident to such performance) and
(vi) Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
interim review of financial statements, the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange on which similar securities issued by the Company are then listed and
the fees and expenses of any person, including special experts, retained by the
Company. Notwithstanding the provisions of this Section 6.1, each seller of
Registrable Securities shall pay all registration expenses to the extent the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of such seller of Registrable Securities.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Company Indemnification. The Company agrees to indemnify
and hold harmless each holder of Registrable Securities whose Registrable
Securities are covered by any Registration Statement, its directors and officers
and each other Person, if any, who controls such holder within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such securities were registered under the Securities Act, any
preliminary
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Prospectus, final Prospectus or summary Prospectus contained therein, or any
amendment or supplement thereto, or 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, and the Company will reimburse each such
indemnified party for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary Prospectus,
final Prospectus, summary Prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such holder specifically for use in the preparation thereof. In
addition, the Company shall indemnify any underwriter of such offering and each
other Person, if any, who controls any such underwriter within the meaning of
the Securities Act in substantially the same manner and to substantially the
same extent as the indemnity herein provided to each Indemnified Party. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
holder.
SECTION 7.2 Seller Indemnification. Each prospective seller of
Registrable Securities hereunder severally, and not jointly, shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
7.1) the Company, each director of the Company, each officer of the Company and
each other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any preliminary
Prospectus, final Prospectus or summary Prospectus contained therein, or any
amendment or supplement thereof, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller
specifically for use in the preparation of such Registration Statement,
preliminary Prospectus, final Prospectus, summary Prospectus or amendment or
supplement. Any such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of such securities
by such seller. The amount payable by any prospective seller of Registrable
Securities with respect to the indemnification set forth in this Section 7.2 in
connection with any offering of Registrable Securities will not exceed the
amount of the gain realized by such prospective seller pursuant to such
offering.
SECTION 7.3 Indemnification Procedure. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding sections of this Article VII,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding sections of this Article VII,
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except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying party
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation. No indemnified party shall consent to entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying party.
SECTION 7.4 Remedies.
(a) If the indemnification provided for in Section 7.1 or 7.2, as the
case may be, is unavailable to an indemnified party in respect of any expense,
loss, claim, damage or liability referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such expense,
loss, claim, damage or liability (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
holder or underwriter, as the case may be, on the other from the distribution of
the Registrable Securities or (ii) if the allocation provided by clause (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 (i) above but
also the relative fault of the Company on the one hand and of the holder or
underwriter, as the case may be, on the other in connection with the statements
or omissions which resulted in such expense, loss, damage or liability, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the holder or underwriter, as the case may be, on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by the holder or
by the underwriter and parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the proviso contained in the first sentence of
subdivision (a) of this Section 7.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (d) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.5 had been available under the circumstances.
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(b) The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7.4
were determined by pro rata allocation (even if the holders and any 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 the immediately preceding paragraph (a). 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.
(c) Notwithstanding the other provisions of this Section 7.4, no holder
of Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
gain realized by such holder from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable Securities
purchased by it and distributed to the public were offered to the public
exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or 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.
ARTICLE VIII
REPORTS
SECTION 8.1 Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the Company
will deliver to such holder a written statement as to whether it has complied
with such requirements. The Company further covenants that it will cooperate
with any holder of Registrable Securities and take such further reasonable
action as any holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such holder may reasonably request), all to the extent required from time to
time to enable such holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A, as applicable, under the Securities Act.
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<PAGE> 24
(b) For so long as any shares of Registrable Securities are Restricted
Securities within the meaning of Rule 144(a)(3) under the Securities Act, the
Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) of the Exchange Act, make available to any holder
of Registrable Securities in connection with the sale by such holder of
Registrable Securities and any prospective purchaser of Registrable Securities
from such, in each case upon request, the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Securities Act.
(c) The Company shall file the reports required to be filed by it under
the Exchange Act and shall comply with all other eligibility requirements for
use of Form S-3 set forth in the instructions to Form S-3 (other than
Registration Requirement A.5).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
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TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald N. Tutor
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: Christopher H. Lee
Chris Saxman
Facsimile: (212) 458-2250
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John P. Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia
Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
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Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
Washington, D.C. 2001
Attn: Robert Kennedy
Facsimile: (202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: Alan J. Barton
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Facsimile: (213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 9.2 Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
SECTION 9.3 Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 9.4 Specific Performance. Without limiting the rights of each
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 9.5 Governing Law; Consent to Jurisdiction . This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York. Each of the parties hereto irrevocably submits to
the personal exclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each of the parties further agree that service of any process, summons, notice
or document hand delivered or sent by registered mail to such party's respective
address set forth in Section 9.1 will be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction as set forth in the immediately preceding
sentence. Each of the parties hereto irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in such
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum.
SECTION 9.6 WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.7 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential,
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punitive or exemplary damages in respect of this Agreement under any
circumstances or for any reason. Consequential damages are, without limitation,
lost profits, lost revenue and the like but do not include the actual costs
incurred in obtaining substitute performance where there has been a failure to
perform an obligation under any provision of this Agreement.
SECTION 9.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 9.9 Amendments to Laws. Any reference to a section, form, rule
or regulation of the Securities Act or Exchange Act, includes any successor
section, form, rule, regulation or law.
SECTION 9.10 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 9.11 Entire Agreement. Each party expressly acknowledges and
agrees that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Shareholders' Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section 13(d) of the Exchange Act),
or otherwise act together, with respect to the Company or its securities.
SECTION 9.12 Amendment and Waiver. No provision of this Agreement may
be waived except by an instrument in writing signed by the party against whom
the waiver is to be effective. No provision of this Agreement may be amended or
modified except by an instrument in writing signed by holders of a majority of
Registrable Securities or as otherwise provided in this Agreement, provided,
that no such amendment may adversely affect the rights of any holder of
Registrable Securities unless signed by such holder.
SECTION 9.13 No Third Party Beneficiaries. Nothing in this Agreement
shall convey any rights upon any person or entity which is not a party or a
transferee of or successor to a party to this Agreement.
SECTION 9.14 Effectiveness. This Agreement shall become effective
immediately at such time when Closing under the Securities Purchase Agreement
shall occur.
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SECTION 9.15 No Prior Agreements; No Inconsistent Agreements.
(a) The Company, BLUM, The Common Fund, PB Capital and ULLICO hereby
agree that this Registration Rights Agreement supercedes and replaces all prior
agreements between or among those Persons relating to registration rights.
(b) The Company has not entered into and will not enter into any
registration rights agreement or similar arrangements the performance by the
Company of the terms of which would in any manner conflict with, restrict or be
inconsistent with the performance by the Company of its obligations under this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by its authorized officer as of the day and year first above
written.
PERINI CORPORATION
By:________________________
Name:______________________
Title:_______________________
TUTOR-SALIBA CORPORATION
By:__________________________
Name: _______________________
Title:_________________________
RONALD N. TUTOR
------------------------------
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:_____________________________
Name:___________________________
Title:__________________________
O&G INDUSTRIES, INC.
By:_____________________________
Name:__________________________
Title:__________________________
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<PAGE> 31
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By: _________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its general partner
By: Richard C. Blum &
Associates, Inc.,
its general partner
By: ____________________
Name: Murray A. Indick
Title: Partner, General
Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS (Signatory for the
purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P., its
investment advisor
By: Richard C. Blum &
Associates, Inc.,
its general partner
By: __________________
Name: Murray A. Indick
Title: Partner, General
Counsel and
Secretary
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THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE
ACCOUNT P (Signatory for the
purposes set forth in the
Introductory Paragraph of this
Agreement only)
By:____________________________
Name:__________________________
Title:___________________________
32
