<PAGE> 1
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
PERINI CORPORATION
------------------
(Name of Issuer)
COMMON STOCK and
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
(Title of Class of Securities)
713839108
--------------
(CUSIP Number)
Eric R. Markus, Esq.
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
----------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
(Date of Event which Requires Filing of this Statement)
July 24, 1996
-------------
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(b)(3) or (4), check the following box [ ].
Check the following box is a fee is being paid with the statement. [X] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7). NOTE: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
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 (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
----------------------- ------------------
CUSIP NO. 713839108 PAGE 2 OF 10 PAGES
----------------------- ------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
PB CAPITAL PARTNERS, L.P 94-3248865
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]+
(b) [X]+
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
- 0 -
NUMBER OF ------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 150,150 +
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH - 0 -
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
150,150 +
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,150
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%+
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------------
+ See Item 5 below.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
CUSIP NO. 713839108 PAGE 3 OF 10 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RICHARD C. BLUM & ASSOCIATES, L.P., 94-3205364
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]+
(b) [X]+
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 150,150+
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
150,150+
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,150+
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%+
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN, IA
- --------------------------------------------------------------------------------
+ See Item 5 below.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 4
SCHEDULE 13D
CUSIP NO. 713839108 PAGE 4 OF 10 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RICHARD C. BLUM & ASSOCIATES, INC., 94-2967812
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]+
(b) [X]+
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
California
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 150,150+
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
150,150+
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,150+
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%+
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
+ See Item 5 below.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 5
SCHEDULE 13D
CUSIP NO. 713839108 PAGE 5 OF 10 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RICHARD C. BLUM, ###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]+
(b) [X]+
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Not Applicable
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
-0-
NUMBER OF ------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 150,150+
EACH ------------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH -0-
------------------------------------------------------
10 SHARED DISPOSITIVE POWER
150,150+
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,150+
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
100%+
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
+ See Item 5 below.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 6
Page 6 of 10 Pages
This Schedule 13D is filed by and on behalf of PB Capital
Partners, L.P., a Delaware limited partnership ("PB Capital"), Richard C. Blum
& Associates, L.P., a California limited partnership ("RCBA L.P."); Richard C.
Blum & Associates, Inc., a California corporation ("RCBA Inc."); and Richard C.
Blum, the Chairman and a substantial shareholder of RCBA Inc. (collectively the
"Reporting Persons"). As described more fully in Item 4 below, the Reporting
Persons are filing this Schedule 13D pursuant to RULE 13D-1(A) as a result of
an agreement to purchase shares of Series B Cumulative Convertible Preferred
Stock which such shares are convertible into shares of common stock (the
"Common Stock") of the Perini Corporation (the "Issuer").
As to matters on which the Series B Cumulative Convertible
Preferred Stock does not vote as a class, each share of Series B Cumulative
Convertible Stock has voting rights equal to approximately 19.05 shares of the
Issuer's Common Stock.
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to shares of Series B Cumulative
Convertible Preferred Stock and Common Stock of the Issuer. The principal
executive office and mailing address of the Issuer is 73 Mt. Wayte Avenue,
Framingham, Massachusetts 01701.
ITEM 2. IDENTITY AND BACKGROUND.
PB Capital is a limited partnership whose principal business
is investing in securities and whose principal office is located at 909
Montgomery St., Suite 400, San Francisco, California 94133. RCBA L.P. is the
sole general partner of PB Capital.
RCBA L.P. is a California limited partnership whose principal
business is acting as general partner for investment partnerships and providing
investment advisory and financial consulting services. RCBA L.P. is a
registered investment adviser with the Securities and Exchange Commission and
with the State of California. The sole general partner of RCBA L.P. is RCBA
Inc. The principal business office address of RCBA L.P. and RCBA Inc. is 909
Montgomery Street, Suite 400, San Francisco, California 94133. The names of
the executive officers and directors of RCBA Inc., their addresses, citizenship
and principal occupations are as follows:
<TABLE>
<CAPTION>
Name and Office Held Business Address Citizenship Principal
- ---- --- ------ ---- -------- ------- ----------- Occupation or
Employment
----------
<S> <C> <C> <C>
Richard C. Blum 909 Montgomery St. USA President and
President, Chairman and Suite 400 Chairman, RCBA L.P.
Director San Francisco, CA
Nils Colin Lind 909 Montgomery St. Norway Managing Director and
Managing Director and Suite 400 Chief Financial
Director San Francisco, CA Officer, RCBA L.P.
Jeffrey W. Ubben 909 Montgomery St. USA Managing Director of
Managing Director of Suite 400 Investments, RCBA
Investments San Francisco, CA L.P.
Alexander L. Dean 909 Montgomery St. USA Managing Director of
Managing Director of Suite 400 Investments, RCBA
Investments and Director San Francisco, CA L.P.
Peter E. Rosenberg 909 Montgomery St. USA Managing Director of
Managing Director of Suite 400 Investments, RCBA
Investments and Director San Francisco, CA L.P.
Michael Kane 909 Montgomery St. USA Managing Director of
Managing Director of Suite 400 Investments, RCBA
Investments San Francisco, CA L.P.
John H. Steinhart 909 Montgomery St. USA Managing Director and
Managing Director, Chief Suite 400 Chief Administrative
Administrative Officer and San Francisco, CA Officer, RCBA L.P.
Director
George F. Hamel, Jr. 909 Montgomery St. USA Managing Director of
Managing Director Suite 400 Marketing and Sales,
San Francisco, CA RCBA L.P.
Thomas L. Kempner 40 Wall Street USA Chairman, Loeb
Director New York, NY Partners Corporation,
Investment Banking
Business
Donald S. Scherer 3 Embarcadero Center USA Howard, Rice, et al.
Secretary Suite 700 (law firm)
San Francisco, CA
</TABLE>
<PAGE> 7
Page 7 of 10 Pages
* * *
To the best knowledge of the Reporting Persons, none of the
entities or persons identified in this Item 2 has, during the past five years,
been convicted of any criminal proceeding (excluding traffic violations or
similar misdemeanors), nor 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 violation with respect to such
laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The source of funds for the purchases of securities was the
working capital of the Reporting Persons.
ITEM 4. PURPOSE OF TRANSACTION.
PB Capital and RCBA L.P. have entered into an agreement with
the Issuer whereby PB Capital has agreed to acquire the Series B Convertible
Preferred Stock. The Reporting Persons are making this investment for
investment purposes and, if the transaction is consummated, intend to
participate actively in the direction of the Issuer. The consummation of the
Stock Purchase and Sale Agreement pursuant to which this investment is to be
made, a copy of which is annexed hereto as Exhibit 4.1, will lead to the
addition to the Issuer's Board of Directors of three designees of the Reporting
Persons, and membership of at least one of those three new directors on each of
the Committees of the Board of Directors of Issuer, except for the Executive
Committee of the Board of Directors of Issuer on which all of the new directors
will serve. Also as reflected in Exhibit 4.1, consummation of the transaction
will also lead to the amendment of the by-laws of the Issuer to provide that no
action of the Board of Directors on certain matters be taken without the prior
favorable recommendation of the Executive Committee and that the Executive
Committee will oversee the chief executive officer of the Issuer. The
consummation of the Stock Purchase and Sale Agreement is subject to certain
significant contingencies set forth therein, including completion of due
diligence satisfactory to the Partnership and successful renegotiation of
certain of the Issuer's credit facilities.
Other than as set forth in this statement, the Reporting
Persons do not have any present plans or proposals that relate to or would
result in any of the consequences listed in paragraphs (a)-(j) of Item 4 of
Schedule 13D, or any agreement regarding such matters, although they may in the
future take actions which would have such consequences.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a), (b) According to information furnished to the Reporting
Persons by the Issuer, there were no shares of Series B Cumulative Convertible
Preferred Stock issued and outstanding as of December 31, 1995.
Based on the above information, after taking into account the
transactions described in Item 5(c) below, the following Reporting Persons will
report the following direct holdings and corresponding percentage interests in
the Series B Cumulative Convertible Preferred Stock:
<TABLE>
<CAPTION>
Shares of Series B Cumulative
Name Convertible Preferred Stock Percentage Owned
- ---- ----------- --------- ----- ---------- -----
<S> <C> <C> <C> <C>
PB Capital 150,150 100%
RCBA, L.P. - 0 - - 0 -
RCBA Inc. - 0 - - 0 -
Richard C. Blum - 0 - - 0 -
</TABLE>
Ronald Tutor ("Tutor") has had discussions with RCBA, L.P.
about being one of the investors in PB Capital, possibly serving as one of PB
Capital's designees to the Board of Issuer. Tutor is the president of Tutor-
Saliba Corp. which is the owner of approximately 351,318 shares of Common Stock
or approximately 7.4% of the outstanding Common Stock of the Issuer.
Tutor-Saliba Corp. has sole voting and dispositive control over those shares
and no voting or dispositive control over the Series B Cumulative Convertible
Preferred Stock acquired by the Reporting Persons. Although there is no formal
agreement, written or oral, regarding the acquisition, disposition or voting of
the securities of the Issuer as between the Reporting Persons, Tutor or
Tutor-Saliba Corp., the Reporting Persons and Tutor expect that they will be
consulting with each other and thus they and Tutor-Saliba Corp. may, for some
<PAGE> 8
Page 8 of 10 Pages
purposes, be deemed to be members of a group with respect to the Issuer. As
Chairman, director and a substantial shareholder of RCBA Inc., Richard C. Blum
might be deemed to be the beneficial owner of the securities beneficially owned
by RCBA Inc. Although Mr. Blum is joining in this Schedule as a Reporting
Person, the filing of this Schedule shall not be construed as an admission that
he, or any of the other shareholders, directors or executive officers of RCBA
Inc. is, for any purpose, the beneficial owner of any of the securities that
are beneficially owned by RCBA Inc.
(c) Except for the agreement to purchase the Series B
Cumulative Convertible Preferred Stock described above, the Reporting Persons
have engaged in no transaction involving such shares or the Common Stock for
the 60 days prior to the date of the event requiring the filing of this
statement
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
None of the Reporting Persons or, to the best knowledge of the
Reporting Persons, the other persons named in Item 2, is a party to any
contract, arrangement, understanding or relationship with respect to any
securities of the Issuer, including but not limited to the transfer or voting
of any securities of the Issuer, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies, except that PB Capital will be a
party to a voting agreement among it, Issuer, David Perini, Tutor, Bart Perini,
and Tutor-Saliba Corporation (and if they agree, Perini Memorial Foundation and
David B. Perini Testamentary Trust) to vote in favor of the transactions
described in Item 5(c) including but not limited to the Stock Purchase and Sale
Agreement and the by-law amendments at the next shareholder meeting of the
Issuer and for the three directors of Issuer designated by PB Capital; the
execution of this agreement is a condition to PB Capital's acquisition of the
Series B Cumulative Convertible Preferred Stock.
For two years after the date that the Stock Purchase and Sale
Agreement closes, PB Capital and RCBA L.P. have agreed not to purchase any
securities, securities convertible into or exchangeable for Class B Cumulative
Convertible Preferred Stock securities of Issuer except for: securities
purchased or exchanged pursuant to the terms of the Stock Purchase and Sale
Agreement, securities issued by the Issuer pursuant to stock splits, stock
dividends, recapitalization, securities purchased by a broker-dealer affiliate
of the Reporting Persons for the account of an unaffiliated customer,
securities issued pursuant to the exercise of a warrant, option or other rights
pursuant to a distribution to stockholders of Issuer or from Issuer directly,
or securities issued pursuant to a business combination between Issuer and an
entity which is not an affiliate of the Registered Persons.
For two years after the date that the Stock Purchase and Sale
Agreement closes, PB Capital and RCBA L.P. have agreed to allow Issuer the
right of first refusal to purchase (under certain circumstances) the Series B
Cumulative Convertible Preferred Stock purchased pursuant to the Stock
Purchase and Sale Agreement or the Common Stock into which it may be converted.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 4.1, being the Stock Purchase and Sale Agreement
between PB Capital, RCBA L.P. and the Issuer.
<PAGE> 9
Page 9 of 10 Pages
SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
July 26, 1996
PB CAPITAL PARTNERS, L.P. RICHARD C. BLUM & ASSOCIATES, L.P.
By Richard C. Blum & Associates, L.P., By Richard C. Blum & Associates,
its General Partner Inc., its General Partner
By Richard C. Blum & Associates, By
Inc., its General Partner ---------------------------
John H. Steinhart, Chief
Administrative Officer and
Managing Director
By
--------------------------
John H. Steinhart, Chief
Administrative Officer and
Managing Director
RICHARD C. BLUM & ASSOCIATES, INC. ---------------------------
RICHARD C. BLUM
By
---------------------------------------
John H. Steinhart, Chief Administrative By John H. Steinhart,
Officer and Managing Director Attorney-in-Fact
<PAGE> 10
Page 10 of 10 Pages
EXHIBIT A
JOINT FILING UNDERTAKING
The undersigned, being duly authorized thereunto, hereby execute this
agreement as an exhibit to the Schedule 13D to evidence the agreement of the
below-named parties, in accordance with the rules promulgated pursuant to the
Securities Exchange Act of 1934, to file this Schedule jointly on behalf of
each such party.
Dated: July 26, 1996
PB CAPITAL PARTNERS, L.P. RICHARD C. BLUM & ASSOCIATES, L.P.
By Richard C. Blum & Associates, L.P., By Richard C. Blum & Associates,
its General Partner Inc., its General Partner
By Richard C. Blum & Associates, By
Inc., its General Partner ---------------------------
John H. Steinhart, Chief
By Administrative Officer and
--------------------------- Managing Director
John H. Steinhart, Chief
Administrative Officer and
Managing Director
RICHARD C. BLUM & ASSOCIATES, INC.
---------------------------
RICHARD C. BLUM
By
---------------------------------------
John H. Steinhart, Chief Administrative By John H. Steinhart,
Officer and Managing Director Attorney-in-Fact
<PAGE> 1
EXHIBIT 4.1
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
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I - DEFINITIONS; CERTAIN REFERENCES . . . . . . . . . . . . . . 1
ARTICLE II - CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.1 Time and Place of the Closing . . . . . . . . . . . . 6
2.2 Transactions at the Closing . . . . . . . . . . . . . 6
ARTICLE III - CONDITIONS PRECEDENT TO OBLIGATIONS OF RCBA OR
PURCHASER . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Compliance by Seller . . . . . . . . . . . . . . . . . 7
3.2 No Legal Action . . . . . . . . . . . . . . . . . . . 7
3.3 Certificate of Vote of Directors . . . . . . . . . . . 7
3.4 Amendment of Bylaws . . . . . . . . . . . . . . . . . 7
3.5 Rights Agreement . . . . . . . . . . . . . . . . . . . 7
3.6 Employment Contracts . . . . . . . . . . . . . . . . . 7
3.7 American Stock Exchange . . . . . . . . . . . . . . . 7
3.8 Due Diligence . . . . . . . . . . . . . . . . . . . . 8
3.9 Credit and Bonding Agreements . . . . . . . . . . . . 8
3.10 Legal Opinions . . . . . . . . . . . . . . . . . . . . 8
3.11 Registration Rights Agreement . . . . . . . . . . . . 8
3.12 Voting Agreement . . . . . . . . . . . . . . . . . . . 9
3.13 Other . . . . . . . . . . . . . . . . . . . . . . . . 9
3.14 HSR . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV - CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER . . . . . . 9
4.1 Compliance by RCBA and Purchaser . . . . . . . . . . . 9
4.2 No Legal Action . . . . . . . . . . . . . . . . . . . 9
4.3 Opinion of Independent Investment Banking Firm . . . . 9
4.4 Employment Contracts . . . . . . . . . . . . . . . . . 10
4.5 American Stock Exchange . . . . . . . . . . . . . . . 10
4.6 Credit and Bonding Agreements . . . . . . . . . . . . 10
4.7 HSR . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.8 Legal Opinions . . . . . . . . . . . . . . . . . . . . 10
4.9 Current Ownership . . . . . . . . . . . . . . . . . . 10
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . 10
5.1 Organization, Good Standing, Power, Authority, Etc . . 10
5.2 Capitalization of Seller . . . . . . . . . . . . . . . 11
5.3 SEC Documents . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
5.4 Authority and Qualification of Seller . . . . . . . . 12
5.5 Subsidiaries . . . . . . . . . . . . . . . . . . . . . 12
5.6 Outstanding Securities . . . . . . . . . . . . . . . . 12
5.7 No Contravention, Conflict, Breach, Etc. . . . . . . . 13
5.8 Consents . . . . . . . . . . . . . . . . . . . . . . . 13
5.9 No Existing Violation or Default . . . . . . . . . . . 13
5.10 Environmental Matters . . . . . . . . . . . . . . . . 13
5.11 Licenses and Permits . . . . . . . . . . . . . . . . . 16
5.12 Title to Properties . . . . . . . . . . . . . . . . . 16
5.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 16
5.14 Litigation . . . . . . . . . . . . . . . . . . . . . . 18
5.15 Labor Matters . . . . . . . . . . . . . . . . . . . . 18
5.16 No Illegal or Improper Transactions . . . . . . . . . 19
5.17 Contracts . . . . . . . . . . . . . . . . . . . . . . 19
5.18 Finder's Fees . . . . . . . . . . . . . . . . . . . . 19
5.19 Financial Statements . . . . . . . . . . . . . . . . . 19
5.20 Employee Benefit Plans; ERISA . . . . . . . . . . . . 19
5.21 Contingent Liabilities . . . . . . . . . . . . . . . . 22
5.22 No Material Adverse Change . . . . . . . . . . . . . . 22
5.23 Investment Company . . . . . . . . . . . . . . . . . . 24
5.24 Exemption from Registration; Restrictions on Offer and
Sale of Same or Similar Securities . . . . . . . . . . 24
5.25 Disclosure . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF RCBA AND
PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
6.1 Organization, Good Standing, Power, Authority, Etc . . 24
6.2 No Conflicts; No Consents . . . . . . . . . . . . . . 25
6.3 Investment Intent, Etc . . . . . . . . . . . . . . . . 25
6.4 Litigation . . . . . . . . . . . . . . . . . . . . . . 25
6.5 Certain Fees . . . . . . . . . . . . . . . . . . . . . 26
6.6 Financial Ability . . . . . . . . . . . . . . . . . . 26
ARTICLE VII - COVENANTS OF THE PARTIES . . . . . . . . . . . . . . . . 26
7.1 Restrictive Legends . . . . . . . . . . . . . . . . . 26
7.2 Executive Committee . . . . . . . . . . . . . . . . . 26
7.3 Seller's Board of Directors . . . . . . . . . . . . . 27
7.4 Perini Disclosure Schedule . . . . . . . . . . . . . . 27
7.5 Certificates for Shares and Conversion Shares To
Bear Legends . . . . . . . . . . . . . . . . . . . . . 27
7.6 Removal of Legends . . . . . . . . . . . . . . . . . . 29
7.7 Pre-Closing Activities . . . . . . . . . . . . . . . . 29
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
7.8 Information . . . . . . . . . . . . . . . . . . . . . 29
7.9 Shareholder Meeting . . . . . . . . . . . . . . . . . 29
7.10 Proxy Statement . . . . . . . . . . . . . . . . . . . 29
7.11 Registration Rights . . . . . . . . . . . . . . . . . 30
7.12 Stock Exchange Listing . . . . . . . . . . . . . . . . 30
7.13 HSR . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.14 Acquisition Proposals . . . . . . . . . . . . . . . . 30
7.15 Publicity . . . . . . . . . . . . . . . . . . . . . . 31
7.16 Reservation of Shares . . . . . . . . . . . . . . . . 31
7.17 Confidentiality . . . . . . . . . . . . . . . . . . . 31
7.18 Use of Proceeds . . . . . . . . . . . . . . . . . . . 32
7.19 Maintenance of Business . . . . . . . . . . . . . . . 32
ARTICLE VIII - STANDSTILL . . . . . . . . . . . . . . . . . . . . . . . 32
8.1 Generally . . . . . . . . . . . . . . . . . . . . . . 32
8.2 Voting . . . . . . . . . . . . . . . . . . . . . . . . 33
8.3 Length . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IX - TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE X - EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . 35
10.1 By Seller . . . . . . . . . . . . . . . . . . . . . . 35
10.2 By Purchaser . . . . . . . . . . . . . . . . . . . . . 36
10.3 Specific Remedies . . . . . . . . . . . . . . . . . . 36
ARTICLE XI - SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . 37
ARTICLE XII - PERFORMANCE; WAIVER . . . . . . . . . . . . . . . . . . . 37
ARTICLE XIII - SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . 37
ARTICLE XIV - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 38
14.1 Notices . . . . . . . . . . . . . . . . . . . . . . . 38
14.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . 39
14.3 Governing Law . . . . . . . . . . . . . . . . . . . . 39
14.4 Severability; Interpretation . . . . . . . . . . . . . 39
14.5 Headings . . . . . . . . . . . . . . . . . . . . . . . 39
14.6 Entire Agreement . . . . . . . . . . . . . . . . . . . 39
14.7 Counterparts . . . . . . . . . . . . . . . . . . . . . 39
14.8 Absence of Third Party Beneficiary Rights . . . . . . 39
14.9 Mutual Drafting . . . . . . . . . . . . . . . . . . . 39
14.10 Further Representations . . . . . . . . . . . . . . . 40
</TABLE>
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<TABLE>
<S> <C> <C>
14.11 Specific Performance; Remedies . . . . . . . . . . . . 40
14.12 Right of First Refusal; Transfer of Securities . . . . 40
</TABLE>
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<PAGE> 6
STOCK PURCHASE AND SALE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into
as of July 24, 1996, by and among Richard C. Blum & Associates, L.P., a
California limited partnership ("RCBA"), PB Capital Partners, L.P., a Delaware
limited partnership ("Purchaser"), and Perini Corporation, a Massachusetts
corporation ("Seller").
WHEREAS, Seller is engaged primarily in the construction business; and
WHEREAS, Seller wishes to sell, and Purchaser wishes to purchase,
an aggregate of 150,150 newly issued shares ("Shares") of Series B Cumulative
Convertible Preferred Stock of Seller ("Series B Cumulative Convertible
Preferred Stock"), such stock being subordinate only to the existing outstanding
$21.25 Convertible Exchangeable Preferred Stock ("$21.25 Preferred Stock") of
Seller 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 of the respective
representations, warranties, covenants, agreements and conditions contained
herein, each of RCBA, Purchaser and Seller (together "Parties") agree as
follows:
ARTICLE I
DEFINITIONS; CERTAIN REFERENCES
The terms defined in this Section 1, whenever used in this Agreement,
shall have the following meanings for all purposes of this Agreement:
1.1 "Acquisition Proposal" has the meaning set forth in Section 7.14
of this Agreement.
1.2 "Act" means the Securities Act of 1933, as amended.
1.3 "Affiliate" has the meaning set forth in Rule 12b-2 under the
Exchange Act.
1.4 "Annual Report" has the meaning set forth in Section 5.5.
1.5 "Articles of Organization" means the Articles of Organization of
Seller as filed with the Office of the Secretary of State for the Commonwealth
of Massachusetts, as amended from time to time.
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1.6 "Bylaw Amendments" means the Amendments to the Bylaws of the
Seller, to be approved by the Board of Directors prior to the Closing Date and
submitted by the Seller to the shareholders of Seller for ratification at the
Shareholder Meeting, a true and correct copy of which is attached as Exhibit 1.6
hereto.
1.7 "Certificate of Vote of Directors" means the Certificate of Vote of
Directors classifying 500,000 shares as Series B Cumulative Convertible
Preferred Stock, to be filed by Seller with the Office of the Secretary of State
for the Commonwealth of Massachusetts on or prior to the date and time of the
Closing, a true and correct copy of the text of which is attached as Exhibit 1.7
hereto.
1.8 "Closing" has the meaning set forth in Section 2.1 of this
Agreement.
1.9 "Closing Date" has the meaning set forth in Section 2.1 of this
Agreement.
1.10 "Common Stock" means the common stock, par value $1.00 per share,
of Seller.
1.11 "Conversion Shares" means the shares of Common Stock issuable or
issued upon conversion of the Shares pursuant to the terms of this Agreement and
the Certificate of Vote of Directors.
1.12 "Encumbrance" has the meaning set forth in Section 5.5 of this
Agreement.
1.13 "Environmental Claims" means any and all claims, actions, causes
of action, or other written notices by any Person or entity alleging potential
liability (including, without limitation, potential liability for investigatory
costs, cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or civil or criminal penalties) arising out
of or resulting from (i) the presence or release into the environment of any
Hazardous Material at any location, whether or not owned or operated by the
Seller or any Subsidiary of Seller, or (ii) any violation of any Environmental
Laws.
1.14 "Environmental Laws" means any and all applicable federal, state,
local and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, judicial orders, decrees, codes, injunctions, permits, consent
decrees, consent orders and governmental restrictions, now in effect, relating
to human health, the environment or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Materials or wastes into the environment,
including without limitation ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
Hazardous Materials or wastes or the clean-up or other remediation thereof.
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<PAGE> 8
1.15 "Environmental Permits" means any and all permits, licenses,
authorizations, certificates and approvals of governmental authorities relating
to or required by Environmental Laws and necessary for the business of the
Seller and the Subsidiaries as currently conducted.
1.16 "Environmental Subsidiary" means Perini Environmental Services,
Inc.
1.17 "ERISA" has the meaning set forth in Section 5.20(b) of this
Agreement.
1.18 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.19 "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.
1.20 "Hazardous Materials" means any and all toxic, radioactive,
caustic or otherwise hazardous substances or pollutants, including petroleum,
its derivatives, by-products and other hydrocarbons regulated by, or for which
liability may be imposed under, Environmental Laws.
1.21 "Knowledge of Seller" means to the actual knowledge of (i) any
executive officer or director of the Seller or any Subsidiary of Seller or (ii)
a person who is listed on Exhibit 1.21, which exhibit will be agreed upon by the
parties and filed together with the Perini Disclosure Schedule.
1.22 "Licenses" has the meaning set forth in Section 5.10(g) of this
Agreement.
1.23 "Material Adverse Effect" has the meaning set forth in Section 5.4
of this Agreement.
1.24 "Multiemployer Pension Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
1.25 "New Directors" has the meaning set forth in Section 7.3 of this
Agreement.
1.26 "Perini Securities" has the meaning set forth in Section 8.1(a) of
this Agreement.
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<PAGE> 9
1.27 "Person" means and includes an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a Government
Entity.
1.28 "Proxy Statement" means the proxy statement to be sent to the
shareholders of Seller in connection with the Shareholder Meeting of Seller with
respect to, among other matters, the Shareholder Meeting Matters.
1.29 "Purchase Price" means $200.00 multiplied by the number of Shares
to be purchased by Purchaser and $30,030,000 in the aggregate.
1.30 "Purchaser" has the meaning set forth in the first recital of this
Agreement.
1.31 "RCBA" has the meaning set forth in the first recital of this
Agreement.
1.32 "Registration Rights Agreement" means the Registration Rights
Agreement to be dated as of the date of the Closing among Seller and the
Purchaser, in substantially the form attached as Exhibit 1.32 hereto which shall
be revised to include additional provisions governing notice, indemnification,
black-out rights and hold back agreements, as amended, supplemented and modified
from time to time in accordance with the terms thereof.
1.33 "Representatives" has the meaning set forth in Section 3.8 of this
Agreement.
1.34 "Rights Agreement" means the rights agreement between Perini
Corporation and The First National Bank of Boston dated September 23, 1988, as
amended.
1.35 "SEC" means the Securities and Exchange Commission.
1.36 "SEC Documents" means all documents filed by Seller with the SEC
since January 1, 1993.
1.37 "Seller Plan" means each "employee benefit plan" (as defined in
Section 3(3) of ERISA), whether or not subject to ERISA and any other employee
benefit, bonus, fringe benefit, deferred compensation, equity based
compensation, severance and welfare plan, employment or severance agreement and
any similar arrangement that is maintained or contributed to by Seller or any
Subsidiary for the benefit of any employee or former employee or director or
former director of Seller or any Subsidiary, in such capacity, and any other
plan for which Seller or any Subsidiary could incur liability under Section 412
of the Code or Title IV of ERISA other than Multiemployer Pension Plans.
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<PAGE> 10
1.38 "Shareholder Meeting" has the meaning set forth in Section 7.9 of
this Agreement.
1.39 "Shareholder Meeting Matters" has the meaning set forth in Section
7.9 of this Agreement.
1.40 "Shares" has the meaning set forth in the second recital of this
Agreement.
1.41 "Special Default" has the meaning specified in the Certificate of
Vote of Directors.
1.42 "Standstill Period" has the meaning set forth in Section 8.3 of
this Agreement.
1.43 "Stock Purchase" means the purchase of Series B Cumulative
Convertible Preferred Stock by Purchaser from Seller under this Agreement.
1.44 "Subsidiary" means, with respect to Seller, any corporation,
limited or general partnership, joint venture, association, 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 Seller.
1.45 "Taxes" means any and all taxes, levies or other like
assessments, charges or fees (including estimated taxes, charges and fees),
including, without limitation, income, corporation, add-on minimum, ad valorem,
advance corporation, gross receipts, transfer, excise, property, sales, use,
value-added, license, payroll, employment, severance, pay as you earn,
withholding on amounts paid by or to the relevant party, social security and
franchise or other governmental taxes or charges, imposed by the United States
or any state, county, local or foreign government or subdivision or agency
thereof; and such term shall include any interest, penalties or additions to tax
attributable to such taxes.
1.46 "Tax Return" means any report, return, statement or other written
information required to be supplied to a taxing authority in connection with
Taxes.
1.47 "Transaction Documents" means this Agreement, the Bylaw
Amendments, the Certificate of Vote of Directors, the Registration Rights
Agreement, and the Voting Agreement.
1.48 "Transfer Restricted Security" means a share of Series B Cumulative
Convertible Preferred Stock, a Conversion Share, and any other security which
has not been
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<PAGE> 11
either effectively registered under the Act or distributed to the public
pursuant to Rule 144 under the Act until such share of Series B Cumulative
Convertible Preferred Stock, Conversion Share, or other security (i) has been
effectively registered under the Act and disposed of in accordance with a
registration statement filed under the Act covering it or (ii) is distributed
to the public pursuant to Rule 144 under the Act.
1.49 "Voting Agreement" means the Voting Agreement among Purchaser,
Seller, David B. Perini, Bart Perini, Ronald Tutor and Tutor-Saliba Corporation,
and, if agreed, Perini Memorial Foundation and David B. Perini Testamentary
Trust under the will of Louis R. Perini, substantially in the form attached
hereto as Exhibit 3.12.
ARTICLE II
CLOSING
2.1 Time and Place of the Closing. Seller shall as promptly as
practicable notify Purchaser, and Purchaser shall as promptly as practicable
notify Seller when the conditions, contained in Articles III and IV hereof, to
such party or parties' obligation to effect the Stock Purchase have been
satisfied. The closing of the Stock Purchase (the "Closing") shall take place
at the offices of Morris, James, Hitchens & Williams, 222 Delaware Avenue,
Wilmington, Delaware 19899, or such other location within Delaware as the
parties may mutually agree, on September 9, 1996 or within one thirty (30) day
extension thereof on the election of any party in the event the conditions set
forth in Sections 3.9, 3.14, 4.6 and 4.7 have not been met (the "Closing Date"),
and shall be effective as of 12:01 a.m. on the Closing Date, unless another
date, effective time, or place is agreed to in writing by Purchaser and Seller.
2.2 Transactions at the Closing. At the Closing, subject to the
terms and conditions of this Agreement, Seller shall issue and sell to Purchaser
and Purchaser shall purchase the Shares. At the Closing, Seller shall deliver
to Purchaser a certificate or certificates representing the number of Shares to
be purchased registered in the name of Purchaser or its nominee against payment
of the Purchase Price with respect thereto by wire transfer of immediately
available funds to an account or accounts previously designated by Seller.
ARTICLE III
CONDITIONS PRECEDENT TO OBLIGATIONS OF RCBA OR PURCHASER
The obligations of RCBA, Purchaser to be discharged under this Agreement
on or prior to the Closing are subject to satisfaction of the following
conditions at or prior to the
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<PAGE> 12
Closing (unless expressly waived in writing by RCBA and Purchaser at or prior
to the Closing):
3.1 Compliance by Seller. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Seller at or
prior to the Closing shall have been complied with and performed by it in all
material respects, and the representations and warranties made by Seller in this
Agreement shall be true and correct in all material respects at and as of the
Closing, with the same force and effect as though such representations and
warranties had been made at and as of the Closing, except for changes expressly
contemplated by this Agreement and except for representations and warranties
that are made as of a specific time which shall be true and correct in all
material respects only as of such time.
3.2 No Legal Action. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
instituted before or threatened by any Government Entity which presents a
substantial risk of the restraint or prohibition of the transactions
contemplated hereby or the obtaining of material damages or other material
relief in connection therewith.
3.3 Certificate of Vote of Directors. The Certificate of Vote of
Directors shall have been filed for record with the Office of the Secretary of
the Commonwealth for the Commonwealth of Massachusetts and shall have become
effective.
3.4 Amendment of Bylaws. The Bylaw Amendments shall have been
approved and made effective by the Board of Directors of the Seller subject to
Closing.
3.5 Rights Agreement. 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 of Directors
of the Seller shall have amended or waived provisions of the Rights Agreement
such that neither the execution nor the delivery of this Agreement and the other
Transaction Documents nor the fulfillment of the terms of this Agreement by the
Seller nor the issuance of shares of Conversion Stock as herein contemplated
will cause there to be a Stock Acquisition Date or a Distribution Date (as those
terms are defined in the Rights Agreement).
3.6 Employment Contracts. David B. Perini, Richard J. Rizzo, John
H. Schwartz, Bart Perini and Donald E. Unbekant shall have each signed
employment or other agreements with Seller reflecting the terms set forth at
Exhibit 3.6., in forms reasonably acceptable to both Seller and RCBA.
3.7 American Stock Exchange. RCBA and Purchaser shall have received
satisfactory assurance from the American Stock Exchange (the "Exchange"), in a
form reasonably satisfactory to RCBA and Purchaser, that:
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<PAGE> 13
(a) upon ratification within one year hereof of the sale
of Shares described in this Agreement by shareholders of Seller (including
holders of the Shares) in accordance with the rules of the Exchange, all Common
Stock into which the shares are convertible will be eligible for listing on the
Exchange upon such conversion; and
(b) consummation of the transaction will not cause any
securities of the Seller already listed on the American Stock Exchange to lose
their listing privileges.
3.8 Due Diligence. RCBA 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 Seller (including Exhibit 1.21 and the
Perini Disclosure Schedule). RCBA shall be deemed to be so satisfied unless it
notifies Seller in writing at or prior to the expiration of the forty-five day
period provided in this Section that RCBA is terminating this Agreement because
it is not so satisfied. For forty-five (45) days after the date on which this
Agreement is entered into, Seller shall (and shall cause each of the
Subsidiaries to) cooperate promptly and fully with RCBA or Purchaser's officers,
employees, counsel, accountants and other authorized representatives
("Representatives") and shall afford such Representatives reasonable access
during normal business hrours to all of its (1) sites, properties, books,
contracts and records and personnel and advisers (who will be instructed by
Seller to cooperate) and (2) such additional financial and operating data and
other information as to its business and properties as RCBA may from time to
time reasonably request, including without limitation, access upon reasonable
request to Seller's Representatives, major customers, vendors, suppliers and
creditors for due diligence inquiry and (3) Seller shall (and shall cause each
of the Subsidiaries to) furnish promptly to RCBA or Purchaser all information
concerning its business, properties and personnel as RCBA or Purchaser or their
Representatives may reasonably request during this 45-day period, provided that
any review will be conducted in a way that will not interfere unreasonably with
the conduct of Seller's business. RCBA and Purchaser will keep all information
and documents obtained pursuant to this Section 3.8 on a confidential basis
subject to Section 7.17.
3.9 Credit and Bonding Agreements. Renegotiation and confirmation
of all credit and bonding agreements between Seller and the parties listed on
Exhibit 3.9 shall have been accomplished in a manner reasonably satisfactory to
RCBA and Seller, including receipt by Seller of all necessary consents to the
Transaction Documents and the transactions contemplated therein.
3.10 Legal Opinions. Seller shall have furnished to RCBA and
Purchaser on the Closing Date the opinion of Goodwin, Procter & Hoar LLP, dated
the Closing Date, in form reasonably satisfactory to RCBA and Purchaser.
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<PAGE> 14
3.11 Registration Rights Agreement. Seller shall have executed and
delivered at the Closing the Registration Rights Agreement.
3.12 Voting Agreement. David B. Perini shall have used his best
efforts to have the Perini Testamentary Trust and the David Perini Foundation
execute the Voting Agreement. Purchaser, Seller, David B. Perini, Bart Perini,
Ronald Tutor and Tutor-Saliba Corporation and, if they so agree, Perini Memorial
Foundation and David B. Perini Testamentary Trust under the will of Louis R.
Perini shall each have executed the Voting Agreement substantially in the form
attached as Exhibit 3.12.
3.13 Other. Seller shall have furnished to RCBA and Purchaser such
executed and conformed copies of such certificates, letters and documents as the
RCBA and Purchaser may reasonably request and as are customary for transactions
such as those contemplated by this Agreement.
3.14 HSR. The waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act") shall have expired or been
terminated, if applicable.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to be discharged under this Agreement on or
prior to the Closing are subject to satisfaction of the following conditions at
or prior to the Closing (unless expressly waived in writing by Seller at or
prior to the Closing):
4.1 Compliance by RCBA and Purchaser. All of the terms, covenants
and conditions of this Agreement to be complied with and performed by either
RCBA or Purchaser at or prior to the Closing shall have been complied with and
performed by such entity in all material respects, and the representations and
warranties made by RCBA and Purchaser in this Agreement shall be true and
correct in all material respects at and as of the Closing, with the same force
and effect as though such representations and warranties had been made at and as
of the Closing, except for changes contemplated by this Agreement.
4.2 No Legal Action. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
instituted before or threatened by any Government Entity which presents a
substantial risk of the restraint or prohibition of the transactions
contemplated hereby or the obtaining of material damages or other material
relief in connection therewith.
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<PAGE> 15
4.3 Opinion of Independent Investment Banking Firm. Seller shall
have been advised in writing by J. P. Morgan Company and an independent
investment banking firm reasonably satisfactory to Seller (other than J. P.
Morgan Company), that in such banking firms' opinion, the Purchase Price is
fair, from a financial viewpoint, to the Seller and its stockholders.
4.4 Employment Contracts. David B. Perini, Richard J. Rizzo, John
H. Schwartz, Bart Perini and Donald E. Unbekant shall have each signed
employment or other agreements with Seller reflecting the terms set forth in
Exhibit 3.6 in forms reasonably acceptable to both Seller and RCBA.
4.5 American Stock Exchange. Seller shall have received
satisfactory assurance from the American Stock Exchange (the "Exchange"), in a
form reasonably satisfactory to Seller, that consummation of the transaction
will not cause Seller or any securities of the Seller already listed on the
American Stock Exchange to lose their listing privileges.
4.6 Credit and Bonding Agreements. Renegotiation and confirmation
of all credit and bonding agreements between Seller and the parties listed on
Exhibit 3.9 shall have been accomplished in a manner reasonably satisfactory to
RCBA and Seller, including receipt by Seller of all necessary consents to the
Transaction Documents and the transactions contemplated therein.
4.7 HSR. The waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act") shall have expired or been
terminated, if applicable.
4.8 Legal Opinions. RCBA and Purchaser shall have furnished to
Seller on the Closing Date the opinion of Wilmer, Cutler & Pickering, dated the
Closing Date, in form reasonably satisfactory to Seller.
4.9 Current Ownership. Except for Ronald Tutor and Tutor-Saliba,
investors in Purchaser shall not include any Person that holds more than 1% of
Perini Stock without the prior written consent of Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth on the Perini Disclosure Schedule, Seller hereby
represents and warrants to RCBA and Purchaser as follows:
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<PAGE> 16
5.1 Organization, Good Standing, Power, Authority, Etc. Seller and
each of its Subsidiaries is a corporation duly organized, validly existing and
in good standing under the laws of its state of incorporation. Seller has the
full corporate power and authority to execute and deliver this Agreement and
each other Transaction Document and to perform its obligations under this
Agreement and each other Transaction Document. Seller has taken all action
required by law, its Articles of Organization, its by-laws or otherwise required
to be taken by it to authorize the execution, delivery and performance by it of
this Agreement and each other Transaction Document. This Agreement is, and
after the Closing each other Transaction Document will be, a valid and binding
obligation of Seller, enforceable in accordance with its respective terms,
except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and general principles of equity and except that
rights to indemnity and contribution may be limited by federal or state
securities laws or policies underlying such laws. True and complete copies of
the Articles of Organization and bylaws of Seller as in effect on the date
hereof are attached as Exhibit 5.1 hereto.
5.2 Capitalization of Seller.
(a) After giving effect to the Certificate of Vote of
Directors, the authorized stock of Seller will at the Closing consist of:
15,000,000 shares of Common Stock, of which at July 24, 1996, 4,847,853 shares
were outstanding; 100,000 shares of $21.25 Convertible Exchangeable Preferred
Stock, of which at July 24, 1996, 100,000 share were outstanding; 200,000
shares of Series A Junior Participating Cumulative Preferred Stock, par value
$1.00 per share, none of which shares were outstanding at July 22, 1996. Since
March 31, 1996, the Seller has only issued 117,174 shares of Common Stock in
accordance with the terms of its employee benefit plans as in existence on
March 31, 1996, and 6,925 shares of Common Stock in accordance with the
quarterly payment of the annual retainer portion of directors' fees, in all
cases in the ordinary course of business and in a manner and in amounts
consistent with past practice.
(b) All of the shares of Series B Cumulative Convertible
Preferred Stock issued at the Closing or issued as dividends pursuant to the
Articles of Organization and the Certificate of Vote of Directors will be duly
authorized, validly issued, fully paid and nonassessable and entitled to the
benefits of, and have the terms and conditions set forth in, the Articles of
Organization and the Certificate of Vote of Directors. The Conversion Shares
will be reserved and will be duly authorized for issuance and, when issued in
accordance with the Articles of Organization and the Certificate of Vote of
Directors, will be duly and validly issued, fully paid and nonassessable.
(c) All outstanding shares of stock of Seller have been duly
authorized, are validly issued, fully paid and nonassessable, are free of
preemptive rights, were not issued in violation of the terms of any agreement or
other understanding binding upon
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<PAGE> 17
or known to the Seller and have been issued in compliance with all applicable
federal and state securities or "blue sky" laws. No further approval or
authority of the shareholders or of the Board of Directors of Seller will be
required for the consummation by Seller of the transactions contemplated by
this Agreement and each of the other Transaction Documents, except for approval
of the Shareholder Meeting Matters at the Shareholder Meeting.
5.3 SEC Documents. Each of the SEC Documents, as of the date of
its filing with the SEC and as of the Closing, did not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
5.4 Authority and Qualification of Seller. Seller has the
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the SEC Documents and as currently owned or
leased and conducted. Seller is duly qualified to transact business as a
foreign corporation and is in good standing in each jurisdiction in which the
conduct of its business or its ownership, leasing or operation of property
requires such qualification, other than any failure to be so qualified or in
good standing as would not singly or in the aggregate with all such other
failures reasonably be expected to have a material adverse effect on the assets,
liabilities, results of operations, prospects or condition (financial or
otherwise) of Seller and the Subsidiaries taken as a whole (each a "Material
Adverse Effect").
5.5 Subsidiaries. Exhibit 22 to Seller's Annual Report on Form
10-K for the year ended December 31, 1995 as filed with the SEC ("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. 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 properties and to conduct its
business as described in the 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
property requires such qualification, other than any failure to be so qualified
or in good standing as would not singly or in the aggregate with all such other
failures reasonably be expected to have a Material Adverse Effect. Except as
disclosed in the SEC Documents filed with the SEC prior to the date of this
Agreement, 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 Seller, directly or through Subsidiaries (other
than directors' qualifying shares), are free and clear of any mortgage, pledge,
lien, security interest, restriction upon voting or transfer, claim or
encumbrance of any kind ("Encumbrance") (other than 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
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acting in an individual, fiduciary or other capacity) other than Seller to
acquire any such capital stock, any additional capital stock or any other
securities of any Subsidiary.
5.6 Outstanding Securities. Except as set forth in the SEC
Documents filed with the SEC prior to the date of this Agreement and except as
contemplated by this Agreement, there are no outstanding (a) securities or
obligations of Seller convertible into or exchangeable for any capital stock of
Seller, (b) warrants, rights or options to subscribe for or purchase from Seller
any such capital stock or any such convertible or exchangeable securities or
obligations or (c) obligations of Seller to issue such shares, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
5.7 No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of each of this Agreement and each of the other
Transaction Documents by Seller and the consummation of the transactions herein
and therein contemplated will not (a) contravene any provision of the Articles
of Organization, by-laws or other organization documents of it or of any of the
Subsidiaries, or (b) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets or
properties of it or of any of the Subsidiaries under, any statute, rule,
regulation, order or decree of any Government Entity having jurisdiction over it
or the Subsidiaries or any of its or their respective properties, assets or
operations, or any indenture, mortgage, loan agreement, note or other agreement
or instrument for borrowed money, any guarantee of any agreement or instrument
for borrowed money or any lease, permit, license or other agreement or
instrument to which it or any of the Subsidiaries is a party or by which it or
any such Subsidiary is bound or to which any of the properties, assets or
operations of it or any such Subsidiary is subject which conflict, breach,
violation, default, creation or imposition has, or will have, individually or in
the aggregate, a Material Adverse Effect.
5.8 Consents. No consent, approval, authorization,
order, registration, filing or qualification of or with any (a) Government
Entity or (b) other third party (whether acting in an individual, fiduciary or
other capacity) is required for the consummation of the transactions
contemplated by this Agreement or by any of the other Transaction Documents to
be performed by Seller, except (i) shareholder approval at the Shareholder
Meeting, (ii) such as will have been obtained and made and will be in full
force and effect as of the Closing and (iii) such as may be required under the
Act and state securities laws in connection with the performance by Seller of
its obligations under the Registration Rights Agreement.
5.9 No Existing Violation or Default. Neither Seller nor
any of the Subsidiaries is in violation of (a) its charter, by-laws or other
organization documents or (b) any applicable law, ordinance, administrative or
governmental rule or regulation or (c) any order, decree or judgment of any
Government Entity having jurisdiction over Seller or any Subsidiary. The
properties, assets and operations of Seller and the Subsidiaries are in
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compliance in all material respects with all applicable federal, state, local
and foreign laws, rules and regulations, orders, decrees, judgments, permits
and licenses relating to public and worker health and safety.
5.10 Environmental Matters.
(a) Compliance.
(i) Seller and Subsidiaries are in compliance with all
applicable Environmental Laws except where the failure to comply does not have a
Material Adverse Effect.
(ii) Neither Seller nor any Subsidiary has received any
written communication from any Person or Government Entity that alleges that
Seller or any Subsidiary is not in compliance with applicable Environmental
Laws.
(b) Environmental Permits. Seller and the Subsidiaries
have all Environmental Permits necessary for the conduct and operation of their
business, and all such permits are in good standing or, where applicable, a
renewal application has been timely filed and is pending agency approval, and
Seller and the Subsidiaries are in compliance with all terms and conditions of
all such Environmental Permits.
(c) Environmental Claims.
(i) There is no Environmental Claim pending or, to the
Knowledge of Seller, threatened against Seller or any Subsidiary, or against any
real or personal property or operation that Seller or any Subsidiary owns,
leases or manages, in whole or in part.
(ii) Neither Seller nor any Subsidiary has received
notice that Seller or any Subsidiary is liable for any response, removal,
investigative, or remedial costs under the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., or
under any similar state statute.
(iii) To the Knowledge of Seller, all Hazardous
Materials generated by Seller or any Subsidiary have been transported, stored,
treated, or disposed of by carriers or treatment, storage and disposal
facilities authorized or permitted under all applicable Environmental Laws.
(iv) (a) Seller and the Subsidiaries have fully
complied with all applicable provisions of any Environmental Laws that
condition, restrict or prohibit the transfer, sale, lease or closure of any
property for environmental reasons; (b) neither Seller nor
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<PAGE> 20
any Subsidiary is required to place any notice or restriction relating to the
presence of Hazardous Materials in any instrument or deed to any real property
owned, leased or operated by it; (c) no environmental lien has attached to any
portion of the real property owned or leased by Seller or any Subsidiary; and
(d) no governmental actions have been taken or are in progress that could
subject any or all of the foregoing to any such lien.
(d) Release of Hazardous Materials. To the Knowledge of
Seller, there has not been any release of Hazardous Materials at or from any
facility or real property owned, operated or leased by Seller or any Subsidiary,
except for de minimis releases that would not reasonably be expected to give
rise to liability under the Environmental Laws.
(e) Underground Storage. To the Knowledge of Seller, there
are not now any underground storage tanks on or at any real property leased or
operated by the Seller or any Subsidiary.
(f) Asbestos, PCBs, Etc. To the Knowledge of Seller, no
polychlorinated biphenyls ("PCBs"), asbestos-containing material ("ACM"), or
urea formaldehyde insulation is present at any of the real property currently
owned, leased or operated by Seller or any Subsidiary in such condition or under
such circumstances as would reasonably be expected to give rise to an
Environmental Claim, and Seller and the Subsidiaries have complied in all
material respects with all regulatory requirements relating to the storage,
removal, disposal or release, if any, of ACM or PCBs located on any real
property leased or operated by Seller or any Subsidiary.
(g) Environmental Subsidiary. As to the Environmental
Subsidiary, in addition to the other representations and warranties contained in
this Section 5.10:
(i) There are no claims, actions, causes of action, or
other written notices pending or, to the Knowledge of Seller, threatened against
Seller or any Subsidiary under the Environmental Laws, contract, common law or
otherwise, arising from the Environmental Subsidiary's provision of materials or
services to any Person or entity;
(ii) 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, contract or otherwise, and the
Environmental Subsidiary has not assumed, under the Environmental Laws, contract
or otherwise, the responsibilities or liabilities of the generator of any
Hazardous Material;
(iii) To the Knowledge of Seller, the Environmental
Subsidiary has not performed, and has not provided materials or services used in
the performance of, any remedial action taken pursuant to the Environmental
Laws, where the remedial action is not, or it is alleged by any Person or entity
that the remedial action is not, constructed and
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operating in accordance with the Environmental Laws, contract and other
applicable requirements; and
(iv) To the knowledge of Seller, there are no claims,
actions, causes of action, or other written notices pending or threatened
against Seller or any Subsidiary under the Environmental Laws, contract, common
law or otherwise, 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 action or other written notice will not have a
Material Adverse Effect.
5.11 Licenses and Permits. Seller and the Subsidiaries have such
certificates, permits, licenses, franchises, consents, approvals, orders,
authorizations and clearances from appropriate governmental agencies and bodies
("Licenses") as are necessary to own, lease or operate their properties and to
conduct their businesses in the manner described in the SEC Documents and as
currently owned or leased and conducted and all such Licenses are valid and in
full force and effect except such licenses which the failure to have or to be in
full force and effect individually or in the aggregate do not have a Material
Adverse Effect. To Seller's Knowledge, after due inquiry, Seller and the
Subsidiaries are in compliance in all material respects with their respective
obligations under such Licenses, with such exceptions as individually or in the
aggregate do not have a Material Adverse Effect, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
of such Licenses.
5.12 Title to Properties. Seller and the Subsidiaries have
sufficient title to all material properties (real and personal) owned by Seller
and the Subsidiaries which are necessary for the conduct of the business of
Seller and the Subsidiaries as described in the SEC Documents and as currently
conducted, free and clear of any Encumbrance that may materially interfere with
the conduct of the business of Seller and the Subsidiaries, taken as a whole,
and to the best of Seller's knowledge, after due inquiry, all material
properties held under lease by Seller or the Subsidiaries are held under valid,
subsisting and enforceable leases.
5.13 Taxes.
(a) Seller and each Subsidiary has (i) duly filed (or there
have been filed on its behalf) with the appropriate Government Entities all Tax
Returns required to be filed by it on or prior to the date hereof, all of which
such Tax Returns were correct and complete in all respects and (ii) duly paid in
full or made provision in accordance with generally accepted accounting
principles on the Closing Date Balance Sheet (or there has been paid or
provision has been made on its behalf) for the payment of all Taxes for all
periods ending through the date hereof;
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<PAGE> 22
(b) Seller and each Subsidiary has withheld and paid all
taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, stockholder or other
third party;
(c) no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of Seller or any Subsidiary;
(d) the income Tax Returns of Seller and each Subsidiary
have been examined by the Internal Revenue Service and the applicable state or
local tax authorities for all periods through and including December 31, 1989
(or the applicable statutes of limitation for the assessment of income Taxes for
such periods have expired), and no deficiencies were asserted as a result of
such examinations that have not been resolved and fully paid; neither Seller nor
any Subsidiary has granted any requests, agreements, consents or waivers to
extend the statutory period of limitations applicable to the assessment of any
Taxes for which Seller or any Subsidiary may be liable;
(e) there are no Tax liens outstanding against any assets,
properties or business of Seller or any Subsidiary;
(f) neither Seller nor any Subsidiary has filed a
consent under Section 341(f) of the Code to be treated as a collapsible
corporation;
(g) neither Seller nor any Subsidiary has made any
payments, is obligated to make any payments or is a party to any agreement which
under certain circumstances could obligate it to make any payments which will
not be deductible under Section 280G of the Code;
(h) neither Seller nor any Subsidiary has been a member of
an affiliated group of corporations filing a consolidated federal income Tax
Return or has any liability for the Taxes of any person under Section 1.1502-6
of the Treasury Regulations (or any similar provision of state, local or foreign
law), as a transferee or successor, by contract or otherwise;
(i) correct and complete copies of all income Tax Returns,
examination reports and statements of deficiencies assessed against or agreed to
by Seller or any Subsidiary since January 1, 1993 have been made available to
Purchaser and RCBA for their review;
(j) the aggregate unpaid Taxes of the Seller and
Subsidiaries did not, as of March 31, 1996, exceed the reserve for Tax liability
(rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth in the
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most recent SEC Document, and the aggregate unpaid Taxes of Seller and
Subsidiaries do not exceed that reserve as adjusted for payments and accruals
made through the Closing Date in accordance with the past custom and practice
of Seller and Subsidiaries in filing their Tax Returns; and
(k) neither Seller nor any Subsidiary is a party to any tax
sharing, tax indemnity or other agreement or arrangement relating to Taxes with
any Person.
5.14 Litigation. Except as set forth in SEC Documents filed with
the SEC prior to the date of this Agreement, there are no pending actions,
suits, proceedings, arbitrations or investigations against or affecting Seller
or any of the Subsidiaries or any of their respective properties, assets or
operations, or with respect to which Seller or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that are required under the
Exchange Act to be described in such SEC Documents, that questions the validity
of this Agreement or any of the other Transaction Documents or any action to be
taken pursuant to this Agreement or any of the other Transaction Documents, or
that would singly or in the aggregate, with all such other actions, suits,
investigations or proceedings, reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or could reasonably be expected to
have a material adverse effect on the ability of Seller to perform its
obligations under this Agreement or any of the other Transaction Documents; and,
to the best Knowledge of Seller, after due inquiry, except as set forth in SEC
Documents filed with the SEC prior to the date of this Agreement, no such
actions, suits, proceedings or investigations are threatened or contemplated and
there is no basis for any such action, suit, proceeding or investigation.
5.15 Labor Matters.
(a) Neither Seller nor any Subsidiary is engaged in any
unfair labor practices as defined in the National Labor Relations Act or other
applicable law, ordinance or regulation, and Seller and each Subsidiary is in
compliance in all material respects with all applicable laws respecting
employment and employment practices, terms and conditions of employment, wages,
hours of work and occupational safety and health;
(b) there is no unfair labor practice charge or complaint
pending or threatened against Seller or any Subsidiary before the National Labor
Relations Board nor is there any grievance or any arbitration proceeding arising
out of or under collective bargaining agreements pending or threatened, and
there is no basis for any such charge, complaint or grievance;
(c) there is no labor strike, lockout, slow-down,
employment related arbitration, or work stoppage pending or threatened against
Seller or any Subsidiary;
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(d) neither Seller nor any Subsidiary has experienced any
significant work stoppage nor has Seller or any Subsidiary been a party to any
proceedings before the National Labor Relations Board for the past three years
or been a party to any arbitration proceeding arising out of or under collective
bargaining agreements for the past three years;
(e) there is no charge or compliance proceeding actually
pending or threatened against Seller or any Subsidiary before the Equal
Employment Opportunity Commission or any state, local or foreign agency
responsible for the prevention of unlawful employment practices; and
(f) neither Seller nor any Subsidiary has received notice
of the intent of any Government Entity responsible for the enforcement of labor
or employment laws to conduct an investigation, and no such investigation is in
progress.
5.16 No Illegal or Improper Transactions. Neither Seller nor any
Subsidiary has, nor, to the Knowledge of Seller, has any director, officer or
employee of Seller or any Subsidiary, directly or indirectly, used funds or
other assets of Seller or any Subsidiary, or made any promise or undertaking in
such regard, for (a) illegal contributions, gifts, entertainment or other
expenses relating to political activity; (b) illegal payments to or for the
benefit of governmental officials or employees, whether domestic or foreign; (c)
illegal payments to or for the benefit of any Person, or any director, officer,
employee, agent or representative thereof; or (d) the establishment or
maintenance of a secret or unrecorded fund; and, to the Knowledge of Seller,
there have been no false or fictitious entries made in the books or records of
Seller or any Subsidiary.
5.17 Contracts. All of Seller's material contracts that are
required to be described in the SEC Documents or to be filed as exhibits thereto
are described in the SEC Documents or filed as exhibits thereto and are in full
force and effect. Neither Seller nor any of the Subsidiaries nor, to the best
knowledge of Seller, any other party is in breach of or default under any such
contracts except for such breaches and defaults as in the aggregate have not had
and would not have a Material Adverse Effect.
5.18 Finder's Fees. Except as set forth on the Perini Disclosure
Schedule, no broker, finder or other party is entitled to receive from Seller,
any of the Subsidiaries or any other Person any brokerage or finder's fee or any
other fee, commission or payment as a result of the transactions contemplated by
this Agreement.
5.19 Financial Statements. The audited consolidated financial
statements and related schedules and notes included in the SEC Documents comply
in all material respects with the requirements of the Exchange Act and the Act
and the rules and regulations of the SEC thereunder, were prepared in accordance
with generally accepted accounting principles consistently applied throughout
the period involved and fairly present the financial condition,
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results of operations, cash flows and changes in stockholders' equity of the
Seller and the Subsidiaries at the dates and for the periods presented. The
unaudited quarterly consolidated financial statements and the related notes
included in the SEC Documents present fairly the financial condition, results
of operations and cash flows of Seller and the Subsidiaries at the dates and
for the periods to which they relate, subject to year-end audit adjustments
(consisting only of normal recurring accruals), have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis except as otherwise stated therein and have been prepared on a
basis substantially consistent with that of the audited financial statements
referred to above except as otherwise stated therein.
5.20 Employee Benefit Plans; ERISA.
(a) Schedule 5.20(a) lists each Seller Plan. Seller has
heretofore made available to Purchaser, if applicable, true and complete copies
of each of the following documents: (i) a copy of each such Seller Plan
(including all amendments thereto) or a description of each unwritten plan; (ii)
a copy of the Forms 5500 filed with the Internal Revenue Service with respect to
each such Seller Plan for the last two years; (iii) a copy of the actuarial
report, if any, with respect to each such Seller Plan for the last two years;
(iv) if the Seller Plan is funded through a trust or any third party funding
vehicle, a copy of the trust or other funding agreement (including all
amendments thereto) and the latest financial statements thereof; (v) the most
recent determination letter received from the Internal Revenue Service with
respect to each Seller Plan that is intended to be qualified under Section 401
of the Code; (vi) the most recent summary plan description; and (vii) any forms
filed with Pension Benefit Guaranty Corporation and any Forms 5310 or 5330 filed
with the Internal Revenue Service within the last three years.
(b) (i) none of the Seller Plans is or has been subject to
Title IV of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (ii) there is no outstanding or contingent liability under Title IV
of ERISA with respect to any Seller Plan; (iii) full and timely payment has been
made of all amounts that Seller and each Subsidiary are required to pay as a
contribution to the Seller Plans; (iv) each of the Seller Plans that is intended
to be "qualified" within the meaning of Section 401(a) of the Code is so
qualified; and (v) no Seller Plan provides benefits, including, without
limitation, death or medical benefits (whether or not insured), with respect to
current or former employees of Seller or any Subsidiary beyond their retirement
or other termination of service (other than (1) coverage mandated by Section
4980B of the Code or state health continuation laws, (2) death benefits or
retirement benefits under any funded "employee pension benefit plan," as that
term is defined in Section 3(2) of ERISA, which is a qualified plan under
Section 401(a) of the Code, and (3) deferred compensation, severance, vacation
or other welfare benefits accrued and identified as liabilities on the books of
Seller and Subsidiaries).
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(c) Neither Seller nor any of its ERISA Affiliates is
contributing to or is obligated to contribute to a Multiemployer Pension Plan
nor does Seller or any Subsidiary have any outstanding liability with respect to
any Multiemployer Pension Plan. Neither the Seller nor any of its ERISA
Affiliates has incurred or expects to incur any liability, except for ongoing
funding obligations, under Title IV of ERISA with respect to any Multiemployer
Pension Plan.
(d) Neither Seller nor any Subsidiary has, since January 1,
1996, made any commitment (i) to create any additional Seller Plan or to modify
in any material respect any existing Seller Plan covering employees engaged in
its businesses or (ii) to create or modify in any material respect any salary,
bonus, and/or profit-sharing arrangement covering such employees.
(e) Neither Seller nor any Subsidiary and no Seller Plan
(nor any trust created thereunder nor any trustee or administrator thereof) has
engaged in any transaction, taken any action, or failed to take any action in
connection with which Seller or any Subsidiary could be subject (whether
directly or indirectly or as indemnitor) to any liability (whether actual or
contingent) or material civil penalty assessed pursuant to Sections 409, 502(c),
502(i), 502(l), or 4071 of ERISA or material tax or material penalty imposed
pursuant to Sections 4971, 4972, 4975 to 4980A, or 5000 of the Code. All
returns and reports that were required to be filed with any Government Entity
with respect to Seller Plans have been filed on a timely basis and were correct
and complete in all material respects.
(f) There are no pending, threatened, or anticipated claims
(other than routine claims for benefits) by, on behalf of, or against any Seller
Plan. No Seller Plan is presently under audit or examination (nor has notice
been received of a potential audit) by the Internal Revenue Service, the
Department of Labor, or Pension Benefit Guaranty Corporation, nor are there any
matters pending with respect to any Seller Plan with the Internal Revenue
Service under its Voluntary Compliance Resolution program, its Closing Agreement
Program, or other similar programs.
(g) Each Seller Plan has been operated in all material
respects in accordance with its terms and with applicable Law.
(h) Except for ongoing funding obligations, no liability
under Title IV of ERISA has been or is expected to be incurred by Seller or any
Subsidiary with respect to any ongoing, frozen or terminated "single- employer
plan," within the meaning of Section 4001(a)(15) of ERISA (a "Title IV Pension
Plan"), currently or formerly maintained by any of them, or any single-employer
plan (an "ERISA Affiliate Plan") of any entity that is considered one employer
with the Seller under Section 4001 of ERISA or Section 414 of the Code (an
"ERISA Affiliate"). Neither any Seller Plan which is a funded employee pension
benefit plan ("Pension Plan") nor any ERISA Affiliate Plan has an "accumulated
funding deficiency"
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(whether or not waived) within the meaning of Section 412 of the Code or
Section 302 of ERISA. Neither Seller nor any Subsidiary has provided, or is
required to provide, security to any Pension Plan or to any ERISA Affiliate
Plan pursuant to Section 401(a)(29) of the Code. Neither Seller nor any ERISA
Affiliate is, or, within the last seven years has been, a participating
employer under a multiple employer plan within the meaning of Section 4063 or
4064 of ERISA.
(i) Except for the Employment Contracts referenced in
Section 3.6, the consummation of the transactions contemplated by this Agreement
will not (i) entitle any employee to severance pay, unemployment compensation or
any other payment or (ii) accelerate the timing of any payment or the vesting of
any rights or increase the amount of any compensation due any employee or former
employee. Each Seller Plan may be unilaterally amended or terminated without
liability except as to benefits accrued thereunder prior to the amendment or
termination.
5.21 Contingent Liabilities. Except as fully reflected or reserved
against in the financial statements included in the Annual Report or the
Quarterly Report, or disclosed in the footnotes contained in such financial
statements, Seller and Subsidiaries had no liabilities (including tax
liabilities) at the date of such financial statements, absolute or contingent,
that were material either individually or in the aggregate to Seller and
Subsidiaries taken as a whole. Except as so reflected, reserved, or disclosed,
Seller and Subsidiaries have no commitments which are materially adverse either
individually or in the aggregate to Seller and Subsidiaries taken as a whole.
5.22 No Material Adverse Change. Since the latest date as of which
information with respect to the following items is given in the SEC Documents
filed prior to July 24, 1996 and except as contained in the Transaction
Documents and the transactions contemplated therein, there has not been:
(a) any change that by itself or together with other changes
has a Material Adverse Effect; or
(b) any damage, destruction or loss (whether or not covered
by insurance) materially adversely affecting the properties or business of
Seller; or
(c) except as provided for in this Agreement and the other
Transaction Documents, any change in the authorized capital of Seller or in its
outstanding securities or any change in its ownership interests or any grant of
any options, warrants, calls, conversion rights or commitments; or
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(d) any declaration or payment of any dividend or
distribution in respect of the capital stock or any direct or indirect
redemption, purchase or other acquisition of any of the capital stock of Seller;
or
(e) any increase in the compensation, bonus, sales
commissions or fee arrangements payable or to become payable by Seller to any of
its officers directors, stockholders, employees, consultants or agents, except
for ordinary and customary bonuses and salary increased for employees in
accordance with past practice; or
(f) any work interruptions, labor grievances or claims
filed, or any similar event or condition of any character, materially adversely
affecting the business or future prospects of Seller; or
(g) any sale or transfer, or any agreement to sell or
transfer, any material assets property or rights of Seller to any person; or
(h) any cancellation, or agreement to cancel, any
indebtedness or other obligation owing to Seller, provided that Seller may
negotiate and adjust bills in the course of good faith disputes with customers
in a manner consistent with past practice; or
(i) any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any interest in any of the assets,
property or rights of Seller or requiring consent of any party to the transfer
and assignment of any such assets, property or rights; or
(j) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any property, rights or assets outside of
the ordinary course of business of Seller; or
(k) any waiver of any material rights or claims of Seller;
or
(l) any material breach, amendment or termination of any
material contract, agreement, license, permit or other right to which Seller is
a party; or
(m) any transaction by Seller outside the ordinary course
of business; or
(n) any capital expenditures or commitment by Seller,
either individually or in the aggregate, exceeding $5,000,000.00; or
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(o) any change in accounting methods or practices
(including any change in depreciation or amortization policies or rates) by
Seller or the revaluation by Seller of any of its assets; or
(p) any creation or assumption by Seller of any mortgage,
pledge, security interest or lien or other encumbrance on any asset (other than
liens arising under existing lease financing arrangements which are not material
and liens for taxes not yet due and payable); or
(q) any entry into, amendment of, relinquishment,
termination or non-renewal by Seller of any contract, lease transaction,
commitment or other right or obligation that would have a Material Adverse
Effect; or
(r) any loan by Seller to any person or entity, incurring
by Seller, of any indebtedness, guaranteeing by Seller of any indebtedness,
issuance or sale of any debt securities of Seller or guaranteeing of any debt
securities of others; or
(s) the commencement or notice or threat of commencement of
any lawsuit or proceeding against or investigation of Seller or any of its
affairs; or
(t) negotiation or agreement by Seller or any officer or
employee thereof to do any of the things described in the preceding clauses (a)
through (s) (other than negotiations with RCBA and its representatives regarding
the transactions contemplated by this Agreement).
5.23 Investment Company. Seller is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
5.24 Exemption from Registration; Restrictions on Offer and Sale of
Same or Similar Securities. Assuming the representations and warranties of RCBA
and Purchaser set forth in Article VI hereof are true and correct in all
material respects, the offer and sale of the Shares made pursuant to this
Agreement will be exempt from the registration requirements of the Act. Neither
Seller nor any Person acting on its behalf has, in connection with the offering
of the Shares, engaged in (a) any form of general solicitation or general
advertising (as those terms are used within the meaning of Rule 502(c) under the
Act), (b) any action involving a public offering within the meaning of Section
4(2) of the Act, or (c) any action which would require the registration of the
offering and sale of the Shares pursuant to this Agreement under the Act or
which would violate applicable state securities or "blue sky" laws. Seller has
not made and will not make, directly or indirectly, any offer or sale of Shares
or of securities of the same or a similar class as the Shares if as a result the
offer and sale of Shares contemplated hereby could fail to be entitled to
exemption from the registration requirements of the Act. As
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used herein, the terms "offer" and "sale" have the meanings specified in
Section 2(3) of the Act.
5.25 Disclosure. No representation or warranty concerning the
Seller or any Subsidiary in this Agreement or any Exhibit or Schedule hereto, or
contained in any certificate or instrument delivered or to be delivered by or on
behalf of Seller or any Subsidiaries pursuant to this Agreement, contains or
will contain an untrue statement of 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 in which they were made, not misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
OF RCBA AND PURCHASER
RCBA and Purchaser each hereby represents and warrants to Seller that:
6.1 Organization, Good Standing, Power, Authority, Etc. Each of
RCBA and Purchaser has the full power and authority to execute and deliver this
Agreement and the Registration Rights Agreement, and to perform its obligations
under this Agreement and the Registration Rights Agreement. Each of RCBA and
Purchaser has taken all action required by law, its charter, its by-laws or
otherwise required to be taken by it to authorize the execution and delivery of
this Agreement and the Registration Rights Agreement and the consummation of the
transactions contemplated to be performed by it hereby and thereby. Each of
this Agreement and the Registration Rights Agreement is a valid and binding
agreement of RCBA and Purchaser, enforceable in accordance with its respective
terms, except that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and general principles of equity and except to the
extent that rights to indemnity and contribution may be limited by federal or
state securities laws or policies underlying such laws.
6.2 No Conflicts; No Consents. Neither the execution and delivery
of this Agreement and the Registration Rights Agreement nor the consummation by
Purchaser of the purchase contemplated hereby will (i) conflict with, or result
in a breach of, any provision of its partnership agreement or (ii) violate any
statute or law or any judgment, order, writ, injunction, decree, rule or
regulation applicable to RCBA or Purchaser. No consent, authorization or
approval of, or declaration, filing or registration with, or exemption by, any
governmental or regulatory authority is required in connection with the
execution and delivery of, and the performance by RCBA or Purchaser of their
obligations under, this Agreement or the Registration Rights Agreement or the
consummation by RCBA or Purchaser of the transactions to be performed by it as
contemplated hereby and thereby.
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6.3 Investment Intent, Etc. Purchaser (a) has such knowledge,
sophistication and experience in business and financial matters that it is
capable of evaluating the merits and risks of an investment in the Shares, (b)
fully understands the nature, scope and duration of the limitations on transfer
contained in this Agreement, (c) can bear the economic risk of an investment in
the Shares and can afford a complete loss of such investment, and (d) is
purchasing the Shares for investment and not with a view to, or for a sale in
connection with, any public distribution in violation of the Act. Such
Purchaser acknowledges (y) receipt of the SEC Documents filed with the SEC prior
to the date of this Agreement and (z) that such Purchaser has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Seller concerning the merits and risks of
investing in the Shares, and to obtain such additional information that Seller
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy and completeness of the information contained
in such SEC Documents.
6.4 Litigation. There is no claim, suit, action, proceeding or
investigation (whether at law or equity, before or by any Government Entity or
before any arbitrator) pending or, to the knowledge of RCBA or Purchaser,
threatened against or affecting RCBA or Purchaser, the outcome of which would in
any manner impair the ability of RCBA or Purchaser to perform its obligations
hereunder or against the transactions contemplated by this Agreement.
6.5 Certain Fees. Neither RCBA nor Purchaser has entered into, nor
will enter into, during the term of this Agreement, any agreement, arrangement
or understanding with any Person that will result in the obligation of Seller to
pay any finder's fee, brokerage commission or similar payment in connection with
the transactions contemplated hereby.
6.6 Financial Ability. Purchaser is financially capable and has,
or will have upon the Closing Date, sufficient cash and other resources
available to complete the transactions contemplated by this Agreement upon the
terms and conditions set forth in this Agreement.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1 Restrictive Legends. Purchaser covenants and agrees with
Seller that Purchaser will not dispose of any of Purchaser's shares of Series B
Cumulative Convertible Preferred Stock or Conversion Shares (unless, with
respect to such Conversion Shares, such Conversion Shares were previously issued
pursuant to an effective registration statement under the Act) 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
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Purchaser pursuant to clause (b) of the preceding sentence, Purchaser shall
furnish to Seller an opinion of counsel reasonably satisfactory to Seller to
the effect that such exemption from registration is available in connection
with such sale.
7.2 Executive Committee. Seller shall, immediately upon the
issuance of the Shares, reconstitute its Executive Committee such that:
(a) the Executive Committee shall have five voting members,
three of whom shall be designated directors of Seller by the Purchaser of Series
B Cumulative Convertible Preferred Stock and two of whom shall be David B.
Perini and/or such other director(s) as may be designated by the Board of
Directors of Seller (excluding directors designated by the holders of the Series
B Cumulative Convertible Preferred Stock pursuant to the Certificate of Vote of
Directors); provided, however, that the holders of Series B Cumulative
Convertible shall not be entitled to designate any greater number of members of
the Executive Committee than the number which they are entitled to designate
pursuant to the terms of the Certificate of Vote of Directors, and
(b) the Executive Committee shall meet regularly and as
needed, in Person or by telephone, and
(c) the Board of Directors shall delegate to the Executive
Committee its power set forth in Section 4 of Seller's by-laws to oversee and
direct the CEO of Seller, and
(d) the Board of Directors shall have adopted the Bylaw
Amendments as set forth in Exhibit 1.6 to prevent the modification of the powers
of the Executive Committee set forth in this Section 7.2 and/or the dissolution
of the Executive Committee, and
(e) the provisions of this Section shall terminate and be
of no further force and effect when and if the holders of Series B Cumulative
Convertible Preferred Stock shall not be entitled to designate more than one
director pursuant to the terms of the Certificate of Vote of Directors.
7.3 Seller's Board of Directors. Seller shall, immediately upon
issuance of the Shares, expand its Board of Directors by three members ("New
Directors"), one of whom shall be a Class I director, another of whom shall be a
Class II director and the third of whom shall be a Class III director, shall
appoint persons designated by Purchaser to these three directorships, and shall
not remove such New Directors without cause. For so long as Purchaser is
entitled to nominate at least one Designated Director (as defined in the
Certificate of Vote of Directors) pursuant to the Certificate of Vote of
Directors, Seller shall appoint a Designated Director to the Audit Committee,
the Nominating Committee, and the Compensation Committee.
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7.4 Perini Disclosure Schedule. Within twenty (20) days of the
date on which this Agreement is entered into, Seller shall provide a disclosure
schedule disclosing with specificity all matters which are inconsistent with
Seller's representations and warranties set forth in Article V ("Perini
Disclosure Schedule"); the parties agree that the Perini Disclosure Schedule
shall become part of this Agreement. Seller agrees that RCBA shall have the
right to terminate this Agreement if it is not, in its sole discretion,
satisfied with the Perini Disclosure Schedule. RCBA shall be deemed to be
satisfied with the Perini Disclosure Schedule unless it notifies Seller in
writing within ten (10) days of the receipt of such Perini Disclosure Schedule
that RCBA is terminating this Agreement because it is not so satisfied.
7.5 Certificates for Shares and Conversion Shares To Bear Legends.
(a) So long as the shares of Series B Cumulative
Convertible Preferred Stock are Transfer Restricted Securities, they shall be
subject to a stop-transfer order and the certificate or certificates therefor
shall bear the following legend by which each holder thereof shall be bound:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUABLE
UPON CONVERSION OR EXCHANGE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION
THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE
MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
PERINI CORPORATION TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION
IS AVAILABLE IN CONNECTION WITH SUCH SALE. IN ADDITION, THE VOTING,
SALE, ASSIGNMENT, TRANSFER, PLEDGE OR HYPOTHECATION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO RESTRICTIONS WHICH
ARE CONTAINED IN THE ARTICLES OF ORGANIZATION, AS AMENDED, OF PERINI
CORPORATION, IN THE CERTIFICATE OF VOTE OF DIRECTORS GOVERNING THESE
SHARES AND IN A STOCK PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, A
COPY OF EACH OF WHICH IS ON FILE WITH PERINI CORPORATION AND WILL BE
FURNISHED BY THE CORPORATION TO THE STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE."
(b) So long as the Conversion Shares are Transfer
Restricted Securities, they shall, unless previously issued pursuant to an
effective registration statement under the Act, be subject to a stop-transfer
order and the certificate or certificates representing
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any such Conversion Shares shall bear the following legend by which each holder
thereof shall be bound:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SHARES OR OTHER
SECURITIES ISSUABLE UPON EXCHANGE HEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO PERINI CORPORATION TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
IN ADDITION, THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
HYPOTHECATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS FURTHER
SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN THE ARTICLES OF
ORGANIZATION, AS AMENDED, OF PERINI CORPORATION AND IN A STOCK PURCHASE
AGREEMENT DATED AS OF JULY 24, 1996, A COPY OF EACH OF WHICH IS ON FILE
WITH PERINI CORPORATION AND WILL BE FURNISHED BY THE CORPORATION TO THE
STOCKHOLDER ON REQUEST AND WITHOUT CHARGE."
7.6 Removal of Legends. After termination of the requirement that
all or part of such legend be placed upon a certificate, Seller shall, upon
receipt by Seller of evidence reasonably satisfactory to it that such
requirement has terminated and upon the written request of the holders of
Conversion Shares issue certificates for the Conversion Shares that do not bear
such legend.
7.7 Pre-Closing Activities. From and after the date of this
Agreement until the Closing, each of Seller, RCBA and Purchaser shall act with
good faith towards, and shall use commercially reasonable efforts to consummate,
the transactions contemplated by this Agreement, and none of Seller, RCBA, or
Purchaser will take any action that would prohibit or impair its ability to
consummate the transactions contemplated by this Agreement.
7.8 Information. So long as any of the Series B Cumulative
Convertible Preferred Stock or the Conversion Shares are outstanding, Seller
shall file with the SEC the annual reports and quarterly reports and the
information, documents and other reports that are required to be filed with the
SEC pursuant to Sections 13 and 15 of the Exchange Act, whether or not Seller
has or is required to have a class of securities registered under the Exchange
Act and whether or not Seller is then subject to the reporting requirements of
the Exchange Act, at the time Seller is or would be required to file the same
with the SEC and, promptly after Seller
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is or would be required to file such reports, information or documents with the
SEC, to mail copies of such reports, information and documents to the holders
of the Series B Cumulative Convertible Preferred Stock and the Conversion
Shares at their addresses set forth in the register of Shares and Conversion
Shares maintained by the transfer agent therefor.
7.9 Shareholder Meeting. In connection with the next meeting of
the shareholders of Seller ("Shareholder Meeting"), Seller shall recommend, and
shall use commercially reasonable efforts (including the preparation and
circulation of the Proxy Statement) to obtain, the approval of such holders for
the Transaction Documents, and the transactions contemplated by the Transaction
Documents, and the ratification of the Bylaw Amendments (such items the
"Shareholder Meeting Matters").
7.10 Proxy Statement. Seller covenants that the Proxy Statement
will not include any untrue statement of a material fact, or omit to state any
material fact, necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
Seller's covenant shall not encompass any information in the Proxy Statement
that was furnished in writing to the Seller by or on behalf of Purchaser or RCBA
for use specifically in connection with the preparation of the Proxy Statement.
The Proxy Statement shall not be filed, and no amendment or supplement to the
Proxy Statement shall be made, without consultation with RCBA and Purchaser.
Seller shall notify RCBA and Purchaser promptly of the receipt by it of any
comments from the SEC or its staff and of any request by the SEC for amendments
or supplements to the Proxy Statement and shall supply RCBA and Purchaser with
copies of all correspondence between it and its representatives, on the one
hand, and the SEC or the members of its staff, on the other hand, with respect
to the Proxy Statement.
7.11 Registration Rights. Subject to approval by the shareholders
of Seller, Conversion Shares shall be Registrable Securities, as defined in the
Registration Rights Agreement, and the holders of such Conversion Shares shall
be entitled to the rights of such a holder under the Registration Rights
Agreement.
7.12 Stock Exchange Listing. Subsequent to approval by the
shareholders of the Seller of the Shareholder Meeting Matters at the
Shareholders Meeting, Seller shall take all steps necessary to ensure that the
Conversion Shares are approved for listing, subject to notice of issuance by the
American Stock Exchange and any other securities exchange on which the Common
Stock is listed.
7.13 HSR. To the extent applicable, Seller, RCBA and Purchaser
shall make all filings and furnish all information required with respect to the
transactions contemplated by this Agreement by the HSR Act and shall use their
best efforts to obtain the early termination of the waiting period thereunder,
provided that neither Seller, RCBA nor Purchaser shall be required to agree to
dispose of or hold separate any portion of its business or assets.
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7.14 Acquisition Proposals.
(a) Prior to the Closing, Seller agrees that neither Seller
nor any Subsidiary nor any of the respective officers and directors of Seller or
any of the Subsidiaries shall, and Seller shall direct and use its best efforts
to cause its employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by Seller or
any Subsidiary) not to, initiate, solicit or encourage, directly or indirectly,
any inquiries or the making of any proposal or offer (including, without
limitation, any proposal or offer to stockholders of Seller) with respect to a
merger, consolidation or similar transaction involving, or any purchase of all
or any substantial portion of the assets or any equity securities of, Seller or
any of the Subsidiaries (any such proposal or offer being hereinafter referred
to as an "Acquisition Proposal") or engage in any negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any Person relating to an Acquisition Proposal, or otherwise facilitate directly
or indirectly any effort or attempt to make or implement an Acquisition
Proposal; and
(b) Seller will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. Seller will take the necessary
steps to inform the individuals or entities referred to in the first sentence
hereof of the obligations undertaken in this subsection 7.14(b). Seller will
notify RCBA and Purchaser immediately if any such inquiries or proposals are
received by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with RCBA and Purchaser.
Nothing contained in this Agreement shall prohibit Seller and its directors from
(i) pursuing Acquisition Proposals if, in the exercise of Seller's directors'
good faith judgment (which judgment is based upon the advice of independent,
outside legal counsel) their fiduciary duties to Seller's shareholders so
require, (ii) making to the stockholders any recommendation and related filing
with the SEC, as required by Rules 14e-2 and 14d-9 under the Exchange Act, with
respect to any tender offer, or (iii) from informing the stockholders of Seller
in the proxy materials with respect to the Shareholder Meeting to consider the
transactions contemplated by this Agreement of information that is material to
the vote with respect to such transactions.
7.15 Publicity. Seller, RCBA and Purchaser will consult with each
other and obtain each other's consent 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 and consent, except as may be
required by law or by obligations pursuant to any listing agreement with any
securities exchange.
7.16 Reservation of Shares. Seller shall at all times reserve and
keep available, out of its authorized and unissued stock, solely for the purpose
of effecting the
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conversion of Series B Cumulative Convertible Preferred Stock, such number of
shares of its Common Stock free of preemptive rights as shall from time to time
be sufficient to effect the conversion of Series B Cumulative Convertible
Preferred Stock from time to time.
7.17 Confidentiality. Each of RCBA and the Purchaser recognizes and
acknowledges that it has in the past, currently has, and in the future may
possibly have, access to certain confidential information of Seller. Each of
RCBA and Purchaser agrees that it will not disclose confidential information
with respect to Seller to any person, firm, corporation, association or other
entity for any purpose or reason whatsoever, except to authorized
representatives of Seller and to counsel and other advisers, provided that such
advisers (other than counsel) agree to the confidentiality provisions of this
Section 7.17, unless (i) such information becomes known to the public generally
through no fault of RCBA or Purchaser, (ii) disclosure is required by law or the
order of any governmental authority under color of law, or (iii) the disclosing
party reasonably believes that such disclosure is required in connection with
the defense of a lawsuit against the disclosing party, provided, that prior to
disclosing any information pursuant to clauses (i), (ii), or (iii) above, RCBA
and/or Purchaser shall, if possible, give prior written notice thereof to Seller
and provide Seller with the opportunity to contest such disclosure.
7.18 Use of Proceeds. The net proceeds of the sale of the Shares
will be used by Seller and its Subsidiaries for general corporate purposes, and
shall not, without the prior written consent of Purchaser (which consent may be
withheld in its sole discretion) be used to pay dividends or pay down or reduce
any debt or securities senior in liquidation preference or dividend to the
Shares ("Action"), provided, however, that no such written consent of Purchaser
shall be required where a majority of the Designated Directors (as defined in
the Certificate of Vote of Directors) approves the proposed Action. Seller
intends that such net proceeds will be used for investment in the continuing
businesses of Seller and the Subsidiaries.
7.19 Maintenance of Business. Seller covenants that between the
date of this Agreement and Closing, it shall and shall cause each of its
Subsidiaries to:
(a) conduct its business (including, but not limited to, making
loans, paying directors, officers and employees, including any salary, bonus, or
other compensation policy, disposing or acquiring assets, and incurring
liabilities) only in the ordinary course, consistent with past practice,
(b) use commercially reasonable efforts to preserve its business
organizations intact, to retain the services of its present officers and
employees and to preserve the good will of the suppliers and customers and
others having business relations with it,
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(c) comply in all material respects with all laws that may be
applicable to its business,
(d) not make any noncash distributions or dividends to its
stockholders, and
(e) comply with its stated official accounting policies with
respect to charge-offs and loss provisions.
Subject to the foregoing, any transaction or action that is not
in the ordinary course of business, consistent with Seller's past practice,
shall be subject to the prior written consent of Purchaser.
ARTICLE VIII
STANDSTILL
8.1 Generally. Each of RCBA and Purchaser hereby agrees that
during the Standstill Period (hereinafter defined) it will not, nor will it
permit any of its Affiliates (for purposes of this Agreement, Affiliates of RCBA
and Purchaser shall be deemed to include Ronald Tutor and Tutor-Saliba
Corporation) to, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire by
purchase, by joining a partnership, limited partnership, syndicate or "group"
any securities of Seller or securities convertible into or exercisable or
exchangeable for such securities (collectively, "Perini Securities"); provided,
however, that nothing contained herein shall prohibit RCBA or Purchaser or the
Affiliates of any of them from acquiring any Perini Securities (w) acquired
pursuant to this Agreement or upon the exchange of Shares for Conversion Shares
as contemplated and permitted by the Articles of Organization and Certificate of
Vote of Directors, (x) as a result of a stock split, stock dividend or similar
recapitalization by Seller, (y) upon the execution of buy orders by any
Affiliate of RCBA or Purchaser which is a registered broker-dealer for the bona
fide accounts of its brokerage customers unaffiliated and not acting in concert
with Purchaser or RCBA, or (z) pursuant to the exercise of any warrant, option
or other right to acquire Perini Securities ("Rights"), which it receives
directly from Seller pursuant to a distribution to stockholders or from
acquiring such Rights directly from Seller; and provided, further, that if
during the Standstill Period, as a result of a business combination transaction
between Seller or an Affiliate of Seller and any other entity which is not RCBA,
Purchaser or any Affiliate of either of them (an "Other Entity"), any one or
more of RCBA or Purchaser or any of their Affiliates shall acquire beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of Perini
Securities in such business combination, such members may continue to own
beneficially such Perini Securities so acquired by such members and such Perini
Securities shall continue to be subject to the provisions of this Section; and
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(b) participate in, or encourage, the formation of any group
(within the meaning of Section 13(d)(3) of the Exchange Act which owns or seeks
to acquire beneficial ownership of, or otherwise acts in respect of, Perini
Securities, with the exception of any group all of whose members are Affiliates
of Purchaser (such group, excluding such Affiliates, a "13D Group").
8.2 Voting. Nothing in this Article VIII shall preclude RCBA or
Purchaser from exercising the voting and other rights granted to RCBA or
Purchaser pursuant to this Agreement or the other Transaction Documents.
8.3 Length. As used herein, the term "Standstill Period" shall mean
the period from the date of this Agreement until the earlier to occur of:
(a) Two (2) years after the Closing Date: or
(b) Seller's material breach of any of its obligations
contained in the Registration Rights Agreement; or
(c) Seller's amendment to its charter or by-laws to alter the
size or powers of the Executive Committee without prior consent from Purchaser;
or
(d) Except as to any bankruptcy filing approved by a
majority of the Designated Directors (as defined in the Certificate of Vote of
Directors), Seller or any of its Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled "Bankruptcy"
as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"),
which, in the case of a Subsidiary of Seller, has had or would have a Material
Adverse Effect; or an involuntary case is commenced against Seller or any of its
Subsidiaries and the petition is not controverted within 10 days, or is not
dismissed within 60 days after commencement of the case, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or any substantial part of the property of Seller or any of its
Subsidiaries, which, in the case of a Subsidiary of Seller, has had or would
have a Material Adverse Effect; or Seller or any of its Subsidiaries commences
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, rehabilitation, dissolution, insolvency or liquidation or
similar law of any jurisdiction, whether now or hereafter in effect, relating to
Seller or such Subsidiary, or there is commenced against Seller or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, which, in the case of a Subsidiary of Seller, has had or would have a
Material Adverse Effect; or Seller or any of its Subsidiaries is adjudicated
insolvent or bankrupt, which, in the case of a Subsidiary of Seller, has had or
would have a Material Adverse Effect; or any order of relief or other order
approving any such case or proceeding is entered, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or Seller
or any of the
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Subsidiaries suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days, which, in the case of a Subsidiary of Seller, has had or
would have a Material Adverse Effect; or Seller or any of its Subsidiaries
makes a general assignment for the benefit of creditors, which, in the case of
a Subsidiary of Seller, has had or would have a Material Adverse Effect; or
Seller shall fail to pay, or shall state that it is unable to pay, or shall be
unable to pay, its debts, generally as they become due, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or
Seller or any of its Subsidiaries shall call a meeting of its creditors with a
view to arranging a composition or adjustment of its debts, which, in the case
of a Subsidiary of Seller, has had or would have a Material Adverse Effect; or
Seller or any of its Subsidiaries shall by any act or failure to act indicate
its consent to, approval of or acquiescence in any of the foregoing, which, in
the case of a Subsidiary of Seller, has had or would have a Material Adverse
Effect; or any corporate action is taken by Seller or any of its Subsidiaries
for the purpose of effecting any of the foregoing, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or
(e) without encouragement by or the participation of RCBA,
Purchaser or any of their Affiliates, the acquisition by any Person or 13D Group
(other than RCBA or Purchaser or Affiliates of either) of, the commencement of a
tender offer by such Person or 13D Group for, or the public announcement of an
intention to acquire, securities of Seller which, if added to the securities (if
any) already owned by such Person or 13D Group, would represent fifteen percent
(15%) or more of the total voting power (including rights to acquire voting
power) of Seller's securities, or the receipt by such Person or 13D Group of
Seller's agreement or consent to make such acquisition; provided that a public
announcement or commencement of a tender offer shall end the Standstill Period
only if such Person or 13D Group shall have received Seller's agreement or
consent to make such intended acquisition, and such a tender offer shall
terminate the Standstill Period only if and when the Board of Directors of
Seller shall have (a) recommended approval of such tender offer, (b) not
recommended, within 10 business days after the commencement of such tender
offer, that shareholders reject such tender offer, or (c) amended the Rights
Agreement to permit acquisition of shares under such tender offer; or
(f) the date this Agreement is terminated in accordance with
Article IX hereof.
ARTICLE IX
TERMINATION
Except for the obligations in Article XI and Sections 7.17 and 10.3,
this Agreement and the transactions contemplated hereby shall terminate without
any action by the parties hereto if the Closing shall not have occurred on or
before September 9, 1996,
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<PAGE> 41
provided, however, that in the event Closing shall not have occurred solely
because one or more of the conditions set forth in Sections 3.9, 3.14, 4.6 and
4.7 have not been met, any party may elect, by written notice to the others,
to extend such termination until October 9, 1996. This Agreement may be
terminated at any time prior to the Closing (i) by a written instrument
executed and delivered by Seller, RCBA and Purchaser; (ii) by Seller, if Seller
is not satisfied in its reasonable discretion with the progress of the
renegotiations of the credit agreements listed on Exhibit 3.9 by the twentieth
business day after the date of this Agreement; (iii) by RCBA or Purchaser
pursuant to Section 3.8 or upon any material breach or default by Seller under
this Agreement; or (iv) by Seller upon any material breach or default by RCBA
or Purchaser under this Agreement.
ARTICLE X
EVENTS OF DEFAULT
10.1 By Seller. A material breach or default by Seller shall occur:
(a) in the event that any Representation or Warranty of
Seller set forth in Article V shall be false in any material respect, or
(b) in the event that Seller (or any applicable Subsidiary)
shall not perform in any material respect any covenant required of it in Article
III or Article VII not otherwise waived by RCBA and Purchaser, or
(c) breach of or default by Seller or any Subsidiary under
any of the Transaction Documents.
10.2 By Purchaser. A material breach or default by RCBA or
Purchaser shall occur
(a) in the event that any Representation or Warranty of RCBA
or Purchaser set forth in Article VI shall be false in any material respect, or
(b) in the event that RCBA or Purchaser shall not perform in
any material respect any Covenant required of it in Article IV, VII or VIII not
otherwise waived by Seller, or
(c) breach of or default by RCBA or Purchaser under any of
the Transaction Documents.
10.3 Specific Remedies. In addition to the termination of this
Agreement and the transactions contemplated herein prior to Closing, in the
event of a material breach or
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<PAGE> 42
default by a party (the "Breaching Party"), the following additional remedies
shall be available to the non-breaching party (the "Non-Breaching Party"):
(a) the Breaching Party shall indemnify the Non-Breaching
Party for any and all loss, cost, and expense caused by the breach of
representation, warranty, or covenant; or
(b) in the event that Seller or any Subsidiaries consummate
an Acquisition Proposal at any time prior to the date that is 180 days after the
date hereof, Seller will promptly pay to Purchaser one million five hundred
thousand dollars ($1,500,000.00) unless: (i) either RCBA or Purchaser have
breached this Agreement and Seller has terminated this Agreement pursuant to
Section 10.2, (ii) the conditions set forth in Sections 4.2, 4.5, 4.7 and 4.8
have not been met, or (iii) either RCBA or Purchaser has terminated this
Agreement pursuant to Section 3.8; or
(c) in the event that any of the transactions contemplated
in the Transaction Documents are not consummated for any reason other than (i)
the unwillingness of Purchaser to consummate such transactions, (ii) breach of
representations, warranties or covenants by Purchaser or RCBA followed by
termination of this Agreement under Section 10.2, or (iii) the conditions set
forth in Sections 4.2, 4.5, 4.7 and 4.8 have not been met, Seller shall promptly
pay Purchaser all of its out-of pocket costs and third party expenses (including
professional fees), that RCBA or Purchaser incurred in association with
conducting "due diligence" review of the Seller including for any such due
diligence review undertaken before the execution of this Agreement.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained in this Agreement shall
survive the execution and delivery of this Agreement and the delivery of the
Shares for a period of three years from the date of such delivery and any
examination or investigation made by any party to this Agreement or any of their
successors and assigns.
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<PAGE> 43
ARTICLE XII
PERFORMANCE; WAIVER
The provisions of this Agreement (including this Article XII) may be
modified or amended, and waivers and consents to the performance and observance
of the terms hereof may be given by written instrument executed and delivered by
Seller and (1) prior to the Closing, by RCBA and Purchaser and (2) after the
Closing, by the holder or holders of a majority of the Series B Cumulative
Convertible Preferred Stock. The failure at any time to require performance of
any provision hereof shall in no way affect the full right to require such
performance at any time thereafter (unless performance thereof has been waived
in accordance with the terms hereof for all purposes and at all times by the
parties to whom the benefit of such performance is to be rendered). The waiver
by any party to this Agreement of a breach of any provision hereof shall not be
taken or held to be a waiver of any succeeding breach of such provision or any
other provision or as a waiver of the provision itself.
ARTICLE XIII
SUCCESSORS AND ASSIGNS
All covenants and agreements contained in this Agreement by or on behalf
of the parties hereto shall bind, and inure to the benefit of, the respective
successors and assigns of the parties hereto; provided, however, that the rights
granted to the parties hereto may not be assigned (except to wholly-owned
subsidiaries of such parties) without the prior written consent of the other
parties. RCBA or Purchaser may assign to one or more of its affiliated
partnerships its obligations hereunder in whole or in part, but shall not be
relieved of such obligations.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices. All notices or other communications given or made
hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, or mailed by overnight courier to, the
following addresses (and shall be deemed effective at the time of receipt
thereof).
If to Seller:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: David B. Perini
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<PAGE> 44
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
If to Purchaser or RCBA:
Richard C. Blum & Associates, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Alexander Dean
Facsimile: 415-434-3130
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Michael R. Klein and Eric R. Markus
Facsimile: 202-663-6363
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
14.2 Expenses. Except as set forth in Section 10.3, each party
shall bear its own expenses.
14.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware as applied to
contracts made and performed within the State of Delaware, without regard to
principles of conflicts of law. Each of the parties hereto agrees to submit to
the sole and exclusive jurisdiction of the State and Federal courts in the State
of Delaware in any action or proceeding arising out of or relating to this
Agreement.
14.4 Severability; Interpretation. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, each of Seller, RCBA and Purchaser directs
that such court interpret and apply
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<PAGE> 45
the remainder of this Agreement in the manner which it determines most closely
effectuates their intent in entering into this Agreement, and in doing so
particularly take into account the relative importance of the term, provision,
covenant or restriction being held invalid, void or unenforceable.
14.5 Headings. The index and section headings herein are for
convenience only and shall not affect the construction hereof.
14.6 Entire Agreement. This Agreement together with the other
Transaction Documents and the Employment Contracts embody the entire agreement
between the parties relating to the subject matter hereof and any and all prior
oral or written agreements, representations or warranties, contracts,
understandings, correspondence, conversations, and memoranda, whether written or
oral, among Seller, RCBA and Purchaser, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest, with respect to the subject matter hereof.
14.7 Counterparts. This Agreement may be executed in 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.
14.8 Absence of Third Party Beneficiary Rights. No provision of
this Agreement is intended, nor will be interpreted, to provide or to create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, employee, or partner of any party hereto or
any other person or entity.
14.9 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.
14.10 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.
14.11 Specific Performance; Remedies.
(a) Seller acknowledges that Purchaser will be irreparably
harmed and that there will be no adequate remedy at law for any violation by
Seller of the covenants or agreements contained in Sections 7.2 (a) and (c),
7.3, 7.6, 7.9, 7.12, 7.15 and 7.16 of this
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<PAGE> 46
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available upon the breach of any such covenants or agreements,
Purchaser shall have the right to obtain injunctive relief to restrain a breach
or threatened breach of, or otherwise to obtain specific performance of, these
covenants and agreements of the Seller.
(b) Purchaser acknowledges that Seller will be irreparably
harmed and that there will be no adequate remedy at law for any violation by
Purchaser of the covenants or agreements contained in Sections 7.15 and 7.17 and
Article 8 of this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available upon the breach of any such covenants or
agreements, Seller shall have the right to obtain injunctive relief to restrain
a breach or threatened breach of, or otherwise to obtain specific performance
of, these covenants and agreements of Purchaser.
14.12 Right of First Refusal; Transfer of Securities.
(a) For two (2) years from the Closing Date, Purchaser
covenants not to transfer the Shares and the Conversion Shares to any Person who
engages in the construction business as a general contractor, construction
manager or engineer constructor competitive with the business of Seller (such
share transfer, a "Competitor Transfer").
(b) After two (2) years from the Closing Date, Purchaser
grants to Seller the right of first refusal, each time that Purchaser plans to
effect a Competitor Transfer. In each such event, Purchaser shall notify Seller
of such proposed Competitor Transfer and provide Seller with the number of
Shares and/or Conversion Shares to be transferred and the price and terms
(including tax treatment) of the proposed Share and/or Conversion Share
transfer. Seller shall have the right in its sole discretion, for a period of
fifteen (15) days after receipt of the notice from Purchaser, to elect by
written notice to Purchaser to purchase all Shares and/or Conversion Shares
subject to the proposed Competitor Transfer on the same terms and conditions
offered by such Competitor ("Purchase Notice"). Seller shall have thirty (30)
days from the date such Purchaser Notice is delivered to Purchaser to effect the
purchase. In the event that Seller does not send the Purchase Notice within the
fifteen (15) day period or does not purchase the Shares and/or Conversion Shares
within thirty (30) days after the Purchase Notice is delivered, Purchaser's
right of first refusal to the proposed Competitor Transfer shall terminate.
(c) The Seller's decision as to whether to send a Purchase
Notice and/or effect the purchase of the Shares and/or Conversion Shares
encompassed by the Purchase Notice shall not require action of the Executive
Committee nor shall the Designated Directors (as defined in the Certificate of
Vote of Directors) vote on this matter.
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<PAGE> 47
(d) The rights of first refusal set forth in this Section
shall terminate at the earlier of the fourth anniversary of the Closing Date or
at such time as Purchaser holds less than 50% of the Shares acquired on the
Closing Date (including any Conversion Shares into which any such Shares have
been converted).
(e) For two (2) years from the Closing Date, Purchaser
covenants not to sell or otherwise transfer, or permit anyone else to sell or
otherwise transfer, any interest in Purchaser to any Person who engages in the
construction business as a general contractor, construction manager or engineer
constructor competitive with the business of Seller.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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<PAGE> 48
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
PB CAPITAL PARTNERS, L.P. PERINI CORPORATION
By:_________________________ By: ______________________________
Name: Name:
Title: Title:
RICHARD C. BLUM & ASSOCIATES, L.P.
By:_________________________
Name:
Title:
<PAGE> 49
EXHIBIT 1.6
AMENDMENT TO BY-LAWS OF PERINI CORPORATION
1. Section 3.3 of the By-Laws shall be amended and restated in
its entirety as follows:
"3.3 Executive Committee and Other Committees. The
directors, by a vote of a majority of the directors then in office, shall
elect from their number an Executive Committee composed of five members
and may elect such other committees the directors shall determine, and
delegate to them authority to act as and for the Board to the extent
permitted by law and as provided herein.
"(A) Neither the board of directors nor the
Corporation shall take any of the following actions without the prior
approval of a majority of the members of the Executive Committee: (a) any
borrowing or guarantee by the corporation exceeding $15 million, (b)
except for issuances of stock or stock options pursuant to the
corporation's incentive compensation plans or programs, any issuance of
stock (whether common or preferred, whether voting or non-voting, whether
junior or senior to the Series B Cumulative Convertible Preferred Stock)
other than Common Stock of the corporation in an amount not exceeding five
percent (5%) of the issued and outstanding Common Stock on September __,
1996, (c) any strategic alliance (other than a construction joint venture)
involving a capital commitment exceeding $5 million, (d) any asset sale or
lease exceeding $5 million (other than equipment dispositions in the
normal course of business); and (e) any redemption or amendment of the
Preferred Share Purchase Rights, of the kind authorized and declared on
September 23, 1988 and distributed by the Corporation in September 1988 as
the same have been amended prior to September __, 1996 ('Rights'), or the
preferred stock of the Corporation issuable upon the exercise of such
Rights, or any amendment of the Rights Agreement by and between the
Corporation and the First National Bank at Boston, dated as of September
23, 1988, as amended; provided, however, that for purposes of this Section
8(b)(ii)(2), approval of the Executive Committee shall not be required for
any decision by the Board of Directors to redeem the Series B Cumulative
Convertible Preferred Stock pursuant to Section 6(a). Notwithstanding the
foregoing sentence, the board of directors of the Corporation may take any
of the actions specified in the preceding sentence if, after having
consulted with and considered the advice of outside counsel, it has
reasonably determined in good faith that the failure of the board to take
such action would be likely to cause the members of such board to breach
their fiduciary duties under applicable law.
"(B) The Executive Committee shall make the rules
for the conduct of its business; provided, however, that it shall have no
permanent chairman, shall report its actions to the board of directors,
and shall keep minutes of its meetings. Other Committees created and
elected by the directors may exercise
<PAGE> 50
such powers other than those powers delegated to the Executive Committee,
as the directors determine. Except as the directors may otherwise
determine, any such other committee may make the rules for the conduct of
its business, but unless otherwise provided by the directors or waived,
its business shall be conducted, or its actions taken as nearly as may be
the same manner as is provided for by these by-laws with respect to
meetings or for the conduct of business or the taking of action by the
directors.
"(C) All members of such committees shall hold
such offices, and all such committees shall exist, solely at the pleasure
of the board of directors; provided, however, that the Executive Committee
may not be disbanded, reorganized, or reconstituted without the prior
written approval of a majority of the members of the Executive Committee
as constituted prior to such change (if the holders of the Series B
Cumulative Convertible Preferred Stock then have the right to designate
more than one member of the Executive Committee pursuant to the
Certificate of Vote establishing such series, including the members so
designated by the holders of the Series B Cumulative Convertible Preferred
Stock); provided futher, however, that the board shall not take any action
that would result in there being fewer members of the Executive Committee
designated by the holders of the Series B Cumulative Convertible Preferred
Stock than such holders are entitled to designate pursuant to the
Certificate of Vote establishing such series. The board shall have the
power to rescind any action of any committee (other than decisions or
actions of the Executive Committee pursuant to Section 3.3(A) or 4.5
hereof); provided, however, that no such rescission shall have any
retroactive effect."
2. Section 4.5 of the By-Laws shall be amended by replacing the
phrase "subject to the direction of the directors" each time it appears therein
with "subject to the direction of the Executive Committee for so long as it
exists and thereafter subject to the direction of the directors."
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<PAGE> 51
EXHIBIT 1.7
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF PERINI CORPORATION
(PURSUANT TO CHAPTER 156B, SECTION 26 OF THE
GENERAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS)
------------------------
Perini Corporation, a corporation organized and existing under the
laws of the State of Massachusetts (hereinafter called the "Corporation"), and
having its principal office in this State at 73 Mt. Wayte Avenue, Framingham,
Massachusetts 01701, hereby certifies to the State Department of Massachusetts
that:
FIRST: Pursuant to the authority granted to and vested in the Board of
Directors of the Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of Article ________ of the
Restated Articles of Organization of the Corporation (the "Articles"), the
Board of Directors, at a meeting duly convened and held on ____ __, 1996,
regarding the sale and issuance by the Corporation of cumulative convertible
preferred stock, adopted resolutions (the "Resolutions") classifying 500,000
shares of Preferred Stock of the Corporation into a single series to be
designated as "Series B Cumulative Convertible Preferred Stock" and setting the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of such shares as follows:
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred
Stock designated as "Series B Cumulative Convertible Preferred Stock" and the
number of shares constituting such series shall be 500,000, of which 150,150
shall be issued initially (the date of such issuance, the "Original Issue
Date") and the remainder shall be reserved for issuance as dividends pursuant
to Section 3 below. The number of shares designated as shares of Series B
Cumulative Convertible Preferred Stock may be decreased (but not increased) by
the Board of Directors without a vote of stockholders; provided, however, that
such number may not be decreased below the number of then currently outstanding
shares of Series B Cumulative Convertible Preferred Stock plus the then maximum
number of such shares which could be issued pursuant to Section 3 below
assuming all dividends payable on or prior to September ___, 2006 are paid in
shares of Series B Cumulative Convertible Preferred Stock at the In-Kind
Dividend Rate (defined below) assuming that a Special Default persists
throughout the relevant period.
<PAGE> 52
2. Defined Terms. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Stock
Purchase Agreement by and among the Corporation, Richard C. Blum & Associates,
L.P., and PB Capital Partners, L.P. (the "Stock Agreement").
3. Dividends.
(a) The holders of shares of Series B Cumulative
Convertible Preferred Stock shall be entitled to receive, when and as
authorized and declared by the Board of Directors out of funds at the time
legally available therefor, dividends at the Cash Dividend Rate (defined below)
per annum times the Liquidation Preference (defined below in Section 4(a)) if
paid in cash, or at the In-Kind Dividend Rate (defined below) per annum times
the Liquidation Preference if paid in additional shares of Series B Cumulative
Convertible Preferred Stock, and no more, which shall be fully cumulative,
shall accrue with respect to any such share from the original date of issuance
of such share without interest and shall be payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year (a "Dividend
Payment Date"), commencing December 15, 1996 (except that if any such date is a
Saturday, Sunday or legal holiday, then such dividend shall be payable on the
next day that is not a Saturday, Sunday or legal holiday) to holders of record
as they appear upon the stock transfer books of the Corporation on each March
1, June 1, September 1 and December 1 immediately preceding the payment dates,
or such other dates as shall be fixed at the time of the authorization and
declaration by the Board of Directors (or, to the extent permitted by
applicable law, a duly authorized committee thereof), which date shall not be
less than ten (10) nor more than sixty (60) days preceding the relevant
dividend payment date. For purposes hereof, the term "legal holiday" shall
mean any day on which banking institutions are authorized to close in New York,
New York. The amount of dividends payable per share of Series B Cumulative
Convertible Preferred Stock for each quarterly dividend period shall be
computed by dividing the annual dividend amount by four and shall include
fractional shares. The amount of dividends payable for the initial dividend
period and any period shorter than a full quarterly period during which shares
are outstanding shall be computed on the basis of a 360-day year of twelve
30-day months and the actual number of days elapsed in the period in which
payable. No interest shall be payable in respect of any dividend payment on
the Series B Cumulative Convertible Preferred Stock or any other Parity
Dividend Stock (as hereinafter defined) or any Senior Dividend Stock (as
hereinafter defined) which may be in arrears. The "Cash Dividend Rate" shall
be 9 percent per annum if a Special Default (defined below) has occurred and is
continuing at any time during the applicable Annual Payment Period or
Semiannual Payment Period (defined below),
<PAGE> 53
and shall be 7 percent per annum at all other times. The "In-Kind Dividend
Rate" shall be 12 percent per annum if a Special Default has occurred and is
continuing at any time during the applicable Annual Payment Period or
Semiannual Payment Period (defined below), and shall be 10 percent per annum at
all other times.
(b) Any dividend payments may be made, in the sole
discretion of the Board of Directors, as follows (for purposes of this
determination, the Designated Directors (defined below in Section 13) shall not
vote):
(i) Prior to December 15, 1999:
(1) on or prior to the Original Issue
Date and prior to December 15, 1997 and 1998, the Board of Directors shall
determine whether dividend payments payable on the next four Dividend Payment
Dates beginning December 15 (each, an "Annual Payment Period") shall be paid in
(i) cash or (ii) additional shares of Series B Cumulative Convertible Preferred
Stock valued at the Liquidation Preference (but not in any combination of cash
and additional shares of Series B Cumulative Convertible Preferred Stock);
provided, however, that the first Annual Payment Period shall commence
September 15, 1996, and run for five Dividend Payment Dates if the Original
Issue Date is prior to September 15, 1996;
(2) in the event that, during an Annual
Payment Period when the Board has elected to pay dividends on the Series B
Cumulative Convertible Preferred Stock in cash, the Corporation fails to
authorize, declare and pay in cash on a Dividend Payment Date the full amount
of the cash dividend due at the Cash Dividend Rate, then, on or prior to such
Dividend Payment Date, the Board shall authorize, declare and pay a
supplemental stock dividend in shares of Series B Cumulative Convertible
Preferred Stock (valued at the Liquidation Preference) equal to the difference
between the dividend that would have been paid in-kind at the In-Kind Dividend
Rate (assuming that the Board had elected to pay dividends for such period
in-kind and assuming that a Special Default existed) and the cash dividend
actually declared and paid on such Dividend Payment Date and on the previous
Dividend Payment Date during such Annual Payment Period, if any;
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<PAGE> 54
(ii) On or after December 15, 1999:
(1) On or prior to December 15, 1999 and on or
prior to each June 15 and December 15 thereafter, the Board of Directors shall
determine whether dividend payments accruing on the next two Dividend Payment
Dates beginning on such Dividend Payment Date (each a "Semiannual Payment
Period") shall be paid in (i) cash or (ii) additional shares of Series B
Cumulative Convertible Preferred Stock valued at the Liquidation Preference
(but not in any combination of cash and additional shares of Series B
Cumulative Convertible Preferred Stock);
(2) in the event that, during a period when
the Board has elected to pay dividends on the Series B Cumulative Convertible
Preferred Stock in cash, the Corporation fails to authorize, declare and pay in
cash on a Dividend Payment Date the full amount of the cash dividend due at the
Cash Dividend Rate, then, on such Dividend Payment Date, the Board shall
authorize, declare and pay a supplemental stock dividend in shares of Series B
Cumulative Convertible Preferred Stock (valued at the Liquidation Preference)
equal to the difference between the dividend that would have been paid in-kind
at the In-Kind Dividend Rate (assuming that the Board had elected to pay
dividends for such period in-kind and assuming that a Special Default existed)
and the cash dividend actually declared and paid on such Dividend Payment Date
and on the previous Dividend Payment Date during such Semiannual Payment
Period, if any;
(iii) all shares of Series B Cumulative Convertible
Preferred Stock issued as a dividend with respect to the Series B Cumulative
Convertible Preferred Stock shall thereupon be duly authorized, validly issued,
fully paid and nonassessable.
(c) In the case of shares of Series B Cumulative
Convertible Preferred Stock issued on the Original Issue Date, dividends shall
accrue and be cumulative from such date. In the case of shares of Series B
Cumulative Convertible Preferred Stock issued as a dividend on shares of Series
B Cumulative Convertible Preferred Stock, dividends shall accrue and be
cumulative from the dividend payment date in respect of which such shares were
(or should have been) issued as a dividend.
(d) Each fractional share of Series B Cumulative
Convertible Preferred Stock outstanding shall be entitled to a ratably
proportionate amount of all dividends accruing with respect to each outstanding
share of Series B Cumulative Convertible Preferred Stock, and all such
dividends with respect to
- 4 -
<PAGE> 55
such outstanding fractional shares shall be cumulative and shall accrue
(whether or not declared), and shall be payable in the same manner and at such
times as provided for above with respect to dividends on each outstanding share
of Series B Cumulative Convertible Preferred Stock. Each fractional share of
Series B Cumulative Convertible Preferred Stock outstanding shall also be
entitled to a ratably proportionate amount of any other distributions made with
respect to each outstanding share of Series B Cumulative Convertible Preferred
Stock, and all such distributions shall be payable in the same manner and at
the same time as distributions on each outstanding share of Series B Cumulative
Convertible Preferred Stock.
(e) No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any shares of Common
Stock or other stock of the Corporation ranking junior as to dividends to the
Series B Cumulative Convertible Preferred Stock (collectively, the "Junior
Dividend Stock") except for dividends or distributions that are not
Extraordinary Equity Payments (defined below).
(f) If at any time any dividend on the $21.25 Convertible
Exchangeable Preferred Stock (the "$21.25 Preferred Stock") or any other stock
of the Corporation hereafter issued ranking senior as to dividends to the
Series B Cumulative Convertible Preferred Stock (collectively with the $21.25
Preferred Stock, the "Senior Dividend Stock") shall be in arrears, in whole or
in part, then (except to the extent allowed by the terms of such Senior
Dividend Stock) no dividend shall be authorized, declared, paid or set apart
for payment on the Series B Cumulative Convertible Preferred Stock unless and
until all accrued and unpaid dividends with respect to the Senior Dividend
Stock for all payment periods ending on or prior to the date of payment of the
current dividend on the Series B Cumulative Convertible Preferred Stock shall
have been authorized, declared and paid or set apart for payment. Dividends
payable in additional shares of Series B Cumulative Convertible Preferred Stock
are not subordinated in payment to payment of dividends on the Senior Dividend
Stock.
(g) No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any class or series of
the Corporation's stock heretofore or hereafter issued ranking, as to
dividends, on a parity with the Series B Cumulative Convertible Preferred Stock
(the "Parity Dividend Stock") for any period unless full cumulative dividends
have been, or contemporaneously are, authorized, declared and paid or set apart
in trust for such payment on the Series B Cumulative Convertible Preferred
Stock for all dividend payment periods terminating on or prior to the date of
payment of such full cumulative dividends. No full dividends (other than
dividends payable in additional shares of Series B
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Cumulative Convertible Preferred Stock) shall be authorized, declared, paid or
set apart for payment on the Series B Cumulative Convertible Preferred Stock
for any period unless full cumulative dividends have been, or contemporaneously
are, authorized, declared and paid or set apart for payment on the Parity
Dividend Stock for all dividend periods terminating on or prior to the date of
payment of such full cumulative dividends. When accrued dividends are not paid
in full on the Series B Cumulative Convertible Preferred Stock and the Parity
Dividend Stock, all cash dividends authorized, declared and paid or set apart
for payment on the Series B Cumulative Convertible Preferred Stock and the
Parity Dividend Stock shall be authorized, declared, paid or set apart for
payment pro rata so that the amount of dividends authorized, declared, paid or
set apart for payment per share on the Series B Cumulative Convertible
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends per share on the Series
B Cumulative Convertible Preferred Stock and the Parity Dividend Stock bear to
each other.
4. Liquidation Preference.
(a) The liquidation preference of the Series B Cumulative
Convertible Preferred Stock shall be $200.00 per share (the "Liquidation
Preference"). Subject to the full payment of the liquidation preferences of
the $21.25 Preferred Stock and the shares of stock of the Corporation hereafter
issued ranking senior as to liquidation rights to the Series B Cumulative
Convertible Preferred Stock (the "Senior Liquidation Stock"), in the event of a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of Series B Cumulative Convertible Preferred
Stock shall be entitled to receive out of the assets of the Corporation,
whether such assets are stated capital or surplus of any nature, an amount
equal to the dividends accrued and unpaid on such shares on the date of final
distribution to such holders, whether or not declared, without interest, plus a
sum equal to the Liquidation Preference, and no more, before any payment shall
be made or any assets distributed to the holders of shares of Common Stock, or
any other class or series of the Corporation's stock hereafter issued ranking
junior as to liquidation rights to the Series B Cumulative Convertible
Preferred Stock (collectively, the "Junior Liquidation Stock").
(b) The assets of the Corporation available for
distribution after the liquidation preferences of the Senior Liquidation Stock
are fully met shall be distributed ratably among the holders of the Series B
Cumulative Convertible Preferred Stock and any other class or series of the
Corporation's stock hereafter issued ranking on a parity as to liquidation
rights with the Series B Cumulative Convertible Preferred Stock in proportion
to the respective preferential amounts to
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which each is entitled (but only to the extent of such preferential amounts);
provided, however, that after payment in full of the Liquidation Preferences,
the holders of the shares of the Series B Cumulative Convertible Preferred
Stock shall not be entitled to any further participation in any distribution of
assets by the Corporation. Neither a consolidation or merger of the
Corporation with or into another corporation nor a merger of any other
corporation with or into the Corporation, nor a sale or transfer of all or any
part of the Corporation's assets for cash, securities or other property, will
be considered a liquidation, dissolution or winding up of the Corporation.
5. Limitation on Share Repurchase.
(a) If at any time any dividends on the Series B
Cumulative Convertible Preferred Stock shall be in arrears or the Corporation
shall have failed to make any purchase of shares of Series B Cumulative
Convertible Preferred Stock tendered to it pursuant to Section 7, the
Corporation shall not -- and the Corporation shall not permit any other
corporation or legal entity directly or indirectly controlled by the
Corporation (collectively, the "subsidiaries") to - - repurchase, redeem,
retire or otherwise acquire any shares of Junior Dividend Stock, Junior
Liquidation Stock, or any warrants, rights, calls or options exercisable for or
convertible into any shares of Junior Dividend Stock or Junior Liquidation
Stock, except by conversion into or exchange for shares of Junior Dividend
Stock or Junior Liquidation Stock and other than purchases, redemptions,
retirements or acquisitions made pursuant to and as required by the terms of
any employee incentive or benefit plan of the Corporation or any subsidiary of
the Corporation in effect on July ___, 1996 or as amended or adopted by the
Corporation with approval of the Executive Committee of the Corporation.
(b) If at any time any dividends on the Series B
Cumulative Convertible Preferred Stock shall be in arrears or the Corporation
shall have failed to make any purchase of shares of Series B Cumulative
Convertible Preferred Stock tendered to it pursuant to Section 7, the
Corporation shall not -- and shall not permit any subsidiary to -- repurchase,
redeem, retire or otherwise acquire any shares of the Corporation's or any such
subsidiary's stock except (i) as permitted by the immediately preceding
paragraph and (ii) any subsidiary which is wholly owned by the Corporation may
repurchase, redeem, retire or otherwise acquire shares of its stock.
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6. Redemption at Option of the Corporation.
(a) So long as shares of Common Stock shall have traded
on the Primary Exchange (defined below) (i) for at least forty (40) of the
forty-five (45) trading days (each of which trading days shall be after
September __ , 1999) immediately preceding the Determination Date (defined
below), and (ii) on each of the ten (10) consecutive trading days immediately
prior to the Determination Date (defined below), at a Closing Price (as
hereinafter defined) in excess of the Hurdle Percentage of the conversion price
then in effect for the Series B Cumulative Convertible Preferred Stock for each
such trading day, all, but not less than all, of Series B Cumulative
Convertible Preferred Stock may thereafter be redeemed at the election of the
Board of Directors made on any date (the "Determination Date") on or after
September __, 1999. For purposes of the determination of the Board called for
in the preceding sentence, the Designated Directors (defined below in Section
13) shall not vote. The date on which such shares shall be redeemed shall be a
date that is at least ten (10), but no more than thirty (30), business days
after the Determination Date (during which period the holders of the Series B
Cumulative Convertible Preferred Stock may, but shall not be required to,
convert such stock into Common Stock), for the Redemption Price (defined
below), plus an amount in cash equal to accrued and unpaid dividends thereon,
whether or not authorized or declared, to but excluding the date fixed for
redemption. The Hurdle Percentage shall be 150% from and after September __,
1999, and to September __, 2001; thereafter, the Hurdle Percentage shall be
125%. "Primary Exchange" shall mean the American Stock Exchange or such other
principal national securities exchange or quotation system on which the Common
Stock of the Corporation is quoted or listed or admitted to trading.
(b) Not more than thirty (30) nor less than ten (10)
business days prior to the redemption date fixed by the Board of Directors, the
Corporation shall give notice by hand or overnight courier to the holders of
record of shares of the Series B Cumulative Convertible Preferred Stock to be
redeemed, addressed to such holders at their last addresses as shown upon the
stock transfer books of the Corporation. Each such notice of redemption shall
specify the date fixed for redemption, the Redemption Price, the place or
places of payment, that payment will be made upon presentation and surrender of
the shares of Series B Cumulative Convertible Preferred Stock, that on and
after the redemption date dividends will cease to accrue on such shares, the
then effective conversion price pursuant to Section 8 and that the right of
holders to convert shares of Series B Cumulative Convertible Preferred Stock
shall terminate at the close of business on the business day prior to the
redemption date (unless the Corporation defaults in the payment of the
Redemption Price (defined below)).
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<PAGE> 59
(c) Any notice as herein provided shall be deemed to be
given when delivered to the address specified in the preceding section. On or
after the date fixed for redemption as stated in such notice, each holder of
the shares called for redemption, unless such holder has exercised such
holder's right to convert shares of Series B Cumulative Convertible Preferred
Stock as provided above, shall surrender the certificate representing such
shares to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price. If less than
all the shares evidenced by any such surrendered certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares. Notice
having been given as aforesaid, if, on the date fixed for redemption, funds
necessary for the redemption shall be available therefor and shall have been
irrevocably deposited or set aside in trust for the holders of the shares of
Series B Cumulative Convertible Preferred Stock, then, notwithstanding that the
certificates representing any shares so called for redemption shall not have
been surrendered, dividends with respect to the shares so called shall cease to
accrue after the date fixed for redemption, such shares shall no longer be
deemed outstanding, the holders thereof shall cease to be stockholders of the
Corporation and all rights whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive the Redemption Price
(defined below) without interest upon surrender of their certificates therefor)
shall terminate. If funds legally available for such purpose are not
sufficient for redemption of the shares of Series B Cumulative Convertible
Preferred Stock to be redeemed, then the certificates representing such shares
shall be deemed not to be surrendered, such shares shall remain outstanding and
the rights of holders of shares of Series B Cumulative Convertible Preferred
Stock thereafter shall continue to be only those of a holder of shares of the
Series B Cumulative Convertible Preferred Stock.
(d) Except as provided in Section 7, the shares of Series
B Cumulative Convertible Preferred Stock shall not be subject to the operation
of any mandatory purchase, retirement or sinking fund.
7. Mandatory Repurchase and Repurchase at Option of the Holder.
(a) On the eighth anniversary of the Original Issue Date,
the Corporation shall purchase from each holder of shares of Series B
Cumulative Convertible Preferred Stock one-third of the number of shares of the
Series B Cumulative Convertible Preferred Shares held by such holder on such
eighth anniversary. On the ninth anniversary of the Original Issue Date, the
Corporation shall purchase from each holder of shares of Series B Cumulative
Convertible Preferred Stock one-half of the number of shares of the Series B
Cumulative Convertible Preferred Shares held by such holder on such ninth
anniversary. On
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the tenth anniversary of the Original Issue Date, the Corporation shall
purchase from each holder of shares of Series B Cumulative Convertible
Preferred Stock the number of shares of the Series B Cumulative Convertible
Preferred Shares held by such holder on such tenth anniversary. Repurchases
made pursuant to this Section 7(a) shall be effected on such anniversary date
(or such other day as the holder and the Corporation may agree) and shall be
for the Redemption Price (defined below) plus an amount in cash equal to the
accrued and unpaid dividends thereon, whether or not authorized or declared, to
but excluding the date fixed for repurchase. Any shares of Series B Cumulative
Convertible Preferred Stock which would have accrued but have not been paid on
any shares tendered for purchase shall be deemed to be tendered for purchase.
(b) (i) If one or more Special Defaults shall occur
at any time or from time to time on or after the Original Issue Date, each
holder of shares of the Series B Cumulative Convertible Preferred Stock shall
have the right, at such holder's option exercisable at any time within 120 days
after the happening of each such Special Default, to require the Corporation to
purchase all or any part of the shares of Series B Cumulative Convertible
Preferred Stock then held by such holder as such holder may elect at the
Redemption Price (defined below) plus, in each case, an amount in cash equal to
the accrued and unpaid dividends thereon, whether or not authorized or
declared, to but excluding the date fixed for redemption. Any shares of Series
B Cumulative Convertible Preferred Stock which would have accrued but have not
been paid on any shares tendered for purchase shall be deemed to be tendered
for purchase. The Redemption Price shall be the Liquidation Preference where
there have been no Special Defaults, and -- after there has been one or more
Special Defaults -- shall be 130% of the greater of the Liquidation Preference
or the market value of the Common Stock (valued at the average of the Closing
Prices on the preceding twenty (20) trading days immediately prior to the
occurrence of the Special Default) into which the Series B Cumulative
Convertible Preferred Stock would then be convertible assuming such shares to
be immediately convertible (whether or not such shares were then actually
convertible);
(ii) A "Special Default" shall mean any of the
following events which occur after the Original Issuance Date and while any
shares of the Series B Cumulative Convertible Preferred Stock are outstanding:
(1) the disbanding or other
restructuring, reorganization, or reconstitution (including without limitation
change in the number of members) of the Executive Committee of the Board
without the prior written approval of a majority of the members of the
Executive Committee who were members prior to such change (and, for so long as
the holders of the Series B
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<PAGE> 61
Cumulative Convertible Preferred Stock shall have the right to designate more
than one director to the Executive Committee pursuant to Section 13(b) below,
including the members so designated by the holders of the Series B Cumulative
Convertible Preferred Stock);
(2) the taking of any of the following
actions by the Corporation or the Board without the approval of a majority of
the members of the Executive Committee of the Board (whether or not such action
was taken by the Board in view of its fiduciary duties pursuant to the last
sentence of Section 3.3(A) of the By-Laws of the Corporation, as amended): (A)
any borrowing or guarantee by the Corporation exceeding $15 million, (B) except
for issuance of stock or stock options pursuant to the Corporation's incentive
compensation plans or programs, any issuance of stock (whether common or
preferred, whether voting or non-voting, whether junior or senior to the Series
B Cumulative Convertible Preferred Stock) other than Common Stock of the
Corporation in an aggregate amount not exceeding five percent (5%) of the
Common Stock of the Corporation issued and outstanding on the Original Issue
Date, (C) any strategic alliance (other than a construction joint venture)
involving a capital commitment by the Corporation exceeding $5 million, (D) any
asset sale by the Corporation or lease as lessor exceeding $5 million (other
than equipment dispositions in the normal course of business); and (E) any
redemption or amendment of the Rights (defined below) or the preferred stock of
the Corporation issuable upon the exercise of such Rights, or any amendment of
the Rights Agreement (defined below); provided, however, that for purposes of
this Section 8(b)(ii)(2), approval of the Executive Committee shall not be
required for any decision by the Board of Directors to redeem the Series B
Cumulative Convertible Preferred Stock pursuant to Section 6(a);
(3) any change by the Corporation in the
composition of the Executive Committee of the Board which results in members of
such Committee selected by the holders of the Series B Cumulative Convertible
Preferred Stock pursuant to Section 13(b) below being fewer than the number of
directors that the holders of the Series B Cumulative Convertible Preferred
Stock are then entitled to designate pursuant to that provision or the failure
of the Corporation to nominate for director the persons designated by the
holders of the Series B Cumulative Convertible Preferred Stock in accordance
with Section 13(a) below; or
(4) solely for purposes of the right to
elect additional directors pursuant to Section 9(b) and not for purposes of any
other Section, the failure of the Corporation to authorize, declare, and pay
dividends
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<PAGE> 62
payable in Series B Cumulative Convertible Preferred Stock when due in
accordance with Section 3.
(c) The date fixed for each such repurchase shall be (x)
the anniversary of the Original Issue Date immediately succeeding the notice
given pursuant to Section 7(a), or (y) the 121st day following the occurrence
of the Special Default giving rise to a repurchase pursuant to Section 7(b).
The place of payment shall be at an office or agency in Boston, Massachusetts
fixed therefor by the Corporation or, if not fixed, at the principal executive
office of the Corporation.
(d) The Corporation shall, within 20 days of the
occurrence of a Special Default, give a written notice thereof by registered or
certified mail, postage prepaid, return receipt requested, to the holders of
record of shares of the Series B Cumulative Convertible Preferred Stock,
addressed to such holders at their last addresses as shown upon the stock
transfer books of the Corporation. Each such notice shall specify the Special
Default which has occurred and the date of such occurrence, the place or places
of payment, the then effective conversion price pursuant to Section 8, the then
effective repurchase price and the date the right of such holder to require
such repurchase shall terminate. Any notice that is mailed as herein provided
shall be conclusively presumed to have been duly given, whether or not the
holder of shares of Series B Cumulative Convertible Preferred Stock receives
such notice; and failure to give such notice by mail, or any defect in such
notice, to the holders of any shares shall not affect the validity of the
proceedings for the repurchase of any other shares of Series B Cumulative
Convertible Preferred Stock.
(e) (i) On the date fixed for any such repurchase,
each holder of shares of Series B Cumulative Convertible Preferred Stock who
elects to have shares of Series B Cumulative Convertible Preferred Stock held
by it purchased shall surrender the certificate representing such shares to the
Corporation at the place designated in such notice together with an election to
have such purchase made and shall thereupon be entitled to receive payment
therefor provided in this Section 7. If less than all the shares represented
by any such surrendered certificate are repurchased, a new certificate shall be
issued representing the unpurchased shares. Dividends with respect to the
shares of Series B Cumulative Convertible Preferred Stock so purchased shall
cease to accrue after the date so purchased, such shares shall no longer be
deemed outstanding after such date and the holders thereof shall cease to be
stockholders of the Corporation and all rights whatsoever with respect to the
shares so purchased shall terminate.
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<PAGE> 63
(ii) If the funds legally available for such
purchase are not sufficient to purchase all the shares of Series B Cumulative
Convertible Preferred Stock tendered to the Corporation for purchase, the
Corporation shall purchase the greatest number of whole shares for which such
funds are so available on a pro rata basis among all tendering holders based on
the ratio of the number of shares tendered by each of them to the aggregate
amount of all shares so tendered, and the certificates representing the
unpurchased shares shall be deemed not to be surrendered for repurchase, such
unpurchased shares shall remain outstanding and the rights of the holders of
shares of Series B Cumulative Convertible Preferred Stock thereafter shall
continue to be those of a holder of shares of the Series B Cumulative
Convertible Preferred Stock; provided, however, the Corporation shall
thereafter be required to repurchase all such remaining shares at the first
date it has sufficient funds legally available for such purpose at the price it
would have paid at the date such shares were actually tendered and the
Corporation shall give notice as aforesaid to each holder whose shares were not
repurchased for such reason and such holder shall thereafter have the right to
elect to have such shares repurchased, such election to be made within 30 days
of receipt of such notice. For purposes of this Section, the Corporation shall
be deemed not to have sufficient funds legally available for any such purchase
if the Board of Directors reasonably determines that immediately after such
repurchase the Corporation would be insolvent.
(iii) For so long as there remain shares of Series
B Cumulative Convertible Preferred Stock that have been surrendered for
repurchase in accordance with this Section 7 that have not been so repurchased
by the Corporation: (1) the number of members of the Board of Directors shall
be increased by such number as is necessary to allow the election of the
directors specified in clause (2) of this Section, and (2) the holders of the
Series B Cumulative Convertible Preferred Stock, voting separately as a class,
shall have the right to elect an additional number of directors to the Board of
Directors such that the Designated Directors (defined below in Section 13) who
are serving on the Board of Directors, plus the directors elected by such
holders voting as a class under this clause, constitute a majority of Board.
The right of the holders of the Series B Cumulative Convertible Preferred Stock
to vote for such additional directors shall terminate when shares of the Series
B Cumulative Convertible Preferred Stock properly tendered for repurchase
pursuant to this Section 7 have been repurchased. The term of office of all
directors so elected shall terminate immediately upon the termination of the
right of the holders of the Series B Cumulative Convertible Preferred Stock to
vote for such additional directors, and the number of directors of the Board of
Directors shall immediately thereafter be reduced.
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(iv) The foregoing right of the holders of the
Series B Cumulative Convertible Preferred Stock with respect to the election of
additional directors may be exercised at each annual meeting of stockholders or
at any special meeting of stockholders held for such purpose. If the right to
elect additional directors shall have accrued to the holders of the Series B
Cumulative Convertible Preferred Stock more than thirty (30) days preceding the
date established for the next annual meeting of stockholders, the President of
the Corporation shall, within five (5) days after the delivery to the
Corporation at its principal office of a written request for a special meeting
signed by the holders of at least 10% of all outstanding shares of the Series B
Cumulative Convertible Preferred Stock, call a special meeting of the holders
of the Series B Cumulative Convertible Preferred Stock to be held as promptly
as practicable after the delivery of such request for the purpose of electing
such additional directors.
(v) The holders of the Series B Cumulative
Convertible Preferred Stock voting as a class shall have the right to remove
with or without cause at any time and replace any directors such holders shall
have elected pursuant to this Section 7 and the holders of each other class of
stock of the Corporation shall not have the right to remove any such directors.
8. Conversion.
(a) Right of Conversion. Each share of Series B
Cumulative Convertible Preferred Stock, whether issued originally or in-kind as
a dividend payment, shall be convertible at the option of the holder thereof,
at any time (provided, however, that where the Corporation has elected to
redeem such stock, the option of the holder described in this section must be
exercised prior to the close of business on the business day prior to the date
fixed for redemption of such share as herein provided), into fully paid and
nonassessable shares of Common Stock and such other securities and property as
hereinafter provided, at the rate of that number of shares of Common Stock for
each full share of Series B Cumulative Convertible Preferred Stock that is
equal to the Liquidation Preference plus an amount in cash equal to the accrued
and unpaid dividends thereon, whether or not authorized or declared, divided by
the conversion price applicable per share of Common Stock. For purposes of
this resolution, the "conversion price" applicable per share of Common Stock
shall initially be equal to $10.50, and shall be adjusted from time to time in
accordance with the provisions of this Section 8.
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<PAGE> 65
(b) Conversion Procedures.
(i) Any holder of shares of Series B Cumulative
Convertible Preferred Stock desiring to convert such shares into Common Stock
shall surrender the certificate or certificates representing such shares of
Series B Cumulative Convertible Preferred Stock at the office of the transfer
agent for the Series B Cumulative Convertible Preferred Stock, which
certificate or certificates, if the Corporation shall so require, shall be duly
endorsed to the Corporation or in blank, or accompanied by proper instruments
of transfer to the Corporation or in blank, accompanied by irrevocable written
notice to the Corporation that the holder elects so to convert such shares of
Series B Cumulative Convertible Preferred Stock and specifying the name or
names (with address or addresses) in which a certificate or certificates
evidencing shares of Common Stock are to be issued.
(ii) Subject to Section 8(k) hereof, no payments
or adjustments in respect of dividends on shares of Series B Cumulative
Convertible Preferred Stock surrendered for conversion or on account of any
dividend on the Common Stock issued upon conversion shall be made upon the
conversion of any shares of Series B Cumulative Convertible Preferred Stock.
(iii) The Corporation shall, as soon as
practicable after such deposit of certificates representing shares of Series B
Cumulative Convertible Preferred Stock accompanied by the written notice and
compliance with any other conditions herein contained, deliver at such office
of the transfer agent to the person for whose account such shares of Series B
Cumulative Convertible Preferred Stock were so surrendered or to the nominee or
nominees of such person certificates representing the number of full shares of
Common Stock to which such person shall be entitled as aforesaid, together with
a cash adjustment in respect of any fraction of a share of Common Stock as
hereinafter provided. Subject to the following provisions of this paragraph,
such conversion shall be deemed to have been made as of the date of such
surrender of the shares of Series B Cumulative Convertible Preferred Stock to
be converted, and the person or persons entitled to receive the Common Stock
deliverable upon conversion of such Series B Cumulative Convertible Preferred
Stock shall be treated for all purposes as the record holder or holders of such
Common Stock on such date.
(c) Adjustment of Conversion Price. The conversion price
at which a share of Series B Cumulative Convertible Preferred Stock is
convertible into Common Stock shall be subject to adjustment from time to time
as follows:
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(i) (1) In case the Corporation shall pay or
make a dividend or other distribution on its Common Stock exclusively in Common
Stock or shall pay or make a dividend or other distribution on any other class
of stock of the Corporation which dividend or distribution includes Common
Stock or shall exchange outstanding Rights (as defined in Section 8(j) hereof)
for shares of Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution or to
exchange such Rights shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution or exchange,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination.
(2) In case the Corporation shall issue
or otherwise sell or distribute shares of Common Stock for a consideration per
share in cash or property less than the current market price in effect at the
time of such issuance, the conversion price then in effect shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding immediately prior to such
issuance, sale or distribution plus the number of shares of Common Stock which
the aggregate consideration received by the Corporation for such issuance, sale
or distribution (such consideration, if other than cash, as determined by the
Board of Directors, whose determination shall be conclusive and described in a
vote of the Board of Directors) would purchase at the current market price per
share and the denominator shall be the number of shares of Common Stock
outstanding immediately after giving effecting to such issuance, sale or
distribution.
(ii) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock consisting exclusively of,
or shall otherwise issue to all or substantially all holders of its Common
Stock, rights or warrants entitling the holders thereof to subscribe for or
purchase shares of Common Stock at a price per share less than the then current
market price per share (determined as provided in subparagraph (vii) of this
Section 8(c)) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the conversion price
in effect at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of
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Common Stock which the aggregate of the offering price of the total number of
shares of Common Stock so offered for subscription or purchase would purchase
at such current market price and the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. In case any rights or warrants referred to in this subparagraph
(ii) in respect of which an adjustment shall have been made shall expire
unexercised, the conversion price shall be readjusted at the time of such
expiration to the conversion price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants. For the purposes of this Section 8(c)(ii), if both
a Distribution Date and a Section 11(a)(ii) Event (as such terms are defined in
the Rights Agreement by and between the Corporation and the First National Bank
at Boston, dated as of September 23, 1988, as amended (the "Rights
Agreement")) shall have occurred, then the later to occur of such events shall
be deemed to constitute an issuance of rights to purchase shares of Common
Stock.
(iii) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the conversion
price in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(iv) (1) In case the Corporation shall, by dividend or
otherwise, make a Section 8(c)(iv) Distribution (defined below in Section 8(h))
to all or substantially all holders of its Common Stock, the conversion price
shall be reduced so that the same shall equal the price determined by
multiplying the conversion price in effect immediately following the close of
business on the Determination Date (as defined in Section 8(h)) by a fraction
of which the numerator shall be the current market price per share (determined
as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on
the Determination Date less the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), on the date of such effectiveness, of
the portion of the
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Section 8(c)(iv) Distribution so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of the
Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the Determination Date. If the Board
of Directors so determines as aforesaid the fair market value of any
distribution for purposes of this subparagraph (iv) by reference to the actual
or when-issued trading market for any Securities comprising such distribution,
it must in doing so consider the prices in such market over the same period
used in computing the current market price per share of Common Stock pursuant
to subparagraph (vii) of this Section 8(c).
(2) Notwithstanding the foregoing, if
the Corporation elects to reserve, for distribution to the holders of the
Series B Cumulative Convertible Preferred Stock upon the conversion of the
shares of Series B Cumulative Convertible Preferred Stock, the evidences of the
Corporation's indebtedness, shares of any class of stock, or assets that would
have been distributed to the holders of the Series B Cumulative Convertible
Preferred Stock if they had converted their shares into shares of Common Stock
so that any such holder converting shares of Series B Cumulative Convertible
Preferred Stock will receive upon such conversion, in addition to the shares of
the Common Stock to which such holder is entitled, the amount and kind of such
evidences of the Corporation's indebtedness, shares of any class of stock, or
assets which such holder would have received if such holder had, immediately
prior to the Determination Date for such distribution of securities, converted
its shares of Series B Cumulative Convertible Preferred Stock into Common
Stock, the fair market value of the Securities shall, for purposes of this
subparagraph (iv), be deemed to be zero
(v) Subject to the last sentence of this
subparagraph (v), in case the Corporation shall, by dividend or otherwise, at
any time distribute to all holders of its Common Stock cash (excluding any cash
representing an amount per share of capital stock of the Corporation to the
extent such cash does not constitute an Extraordinary Equity Payment), the
conversion price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this
subparagraph (v) by a fraction of which the numerator shall be the current
market price per share (determined as provided in subparagraph (vii) of this
Section 8(c)) of the Common Stock on the Determination Date less the amount of
cash so distributed and not excluded as above provided applicable to one share
of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such reduction to become effective immediately prior
to the opening of business on the day
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<PAGE> 69
following the Determination Date. Notwithstanding the foregoing, if the
Corporation elects to reserve the cash to be distributed for distribution to
the holders of the Series B Cumulative Convertible Preferred Stock upon the
conversion of the shares of Series B Cumulative Convertible Preferred Stock so
that any such holder converting shares of Series B Cumulative Convertible
Preferred Stock will receive upon such conversion, in addition to the shares of
the Common Stock to which such holder is entitled, the amount of cash which
such holder would have received if such holder had, immediately prior to the
Determination Date for such distribution of cash, converted its shares of
Series B Cumulative Convertible Preferred Stock into Common Stock, then the
conversion price shall not be so reduced.
(vi) In case a tender or exchange offer made by
the Corporation or any subsidiary of the Corporation for all or any portion of
the Corporation's Common Stock shall expire and such tender or exchange offer
shall involve the payment by the Corporation or such subsidiary of
consideration per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds the current market
price per share (determined as provided in subparagraph (vii) of this Section
8(c)) of the Common Stock on the Trading Day next succeeding the Expiration
Time, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately
prior to the Expiration Time by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the current market price
per share (determined as provided in subparagraph (vii) of this Section 8(c))
of the Common Stock on the Trading Day next succeeding the Expiration Time and
the denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the current market price per share (determined as provided
in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Trading
Day next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time.
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(vii) For purposes of any computation under this
section, the current market price per share of Common Stock on any date shall
be deemed to be the volume-weighted average trading price of the Common Stock
for the five-day period before the earlier of the day in question and the "ex"
date with respect to any issuance or distribution requiring such computation;
provided, however, that for purposes of clause (3) of this paragraph, the
current market price per share shall be deemed to be the volume-weighted
average trading price of the Common Stock for the five-day period after the "ex
date." For purposes of this subparagraph (vii), the term "ex" date, (1) when
used with respect to any issuance or distribution, means the first date on
which the Common Stock trades regular way on the relevant exchange or in the
relevant market from which the Closing Price was obtained without the right to
receive such issuance or distribution, (2) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades regular way on such exchange or in such market
after the time at which such subdivision or combination becomes effective, and
(3) when used with respect to any tender or exchange offer, means the first
date on which the Common Stock trades regular way on such exchange or in such
market after the Expiration Time of such offer.
(viii) The Corporation may make such reductions in
the conversion price, in addition to those required by subparagraphs (i), (ii),
(iii), (iv), (v) and (vi) of this Section 8(c), as it considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for income tax
purposes.
(ix) No adjustment in the conversion price shall
be required unless such adjustment would require an increase or decrease of at
least 1% in the conversion price; provided, however, that any adjustments which
by reason of this subparagraph (ix) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(x) Notwithstanding any other provision of this
Section 8 and without implication that the contrary would otherwise be true, no
issuance, dividend or distribution requiring adjustment of the conversion price
pursuant to Section 8(c) hereof shall be deemed to have occurred in the event
that, upon, following or in connection with the redemption or expiration of the
Rights or the termination of the Rights Agreement or otherwise, or the
Corporation enters into a new agreement that is comparable in purpose and
effect to the Rights Agreement (as determined by the Board of Directors, whose
determination shall be conclusive) and distributes Preferred Stock (or other
similar stock purchase rights
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under such agreement that are attached to the Common Stock) to the holders of
Common Stock.
(xi) Whenever the conversion price is adjusted as
herein provided:
(1) the Corporation shall compute the
adjusted conversion price and shall prepare a certificate signed by the
Treasurer of the Corporation setting forth the adjusted conversion price and
showing in reasonable detail the acts upon which such adjustment is based, and
such certificate shall forthwith be filed with the transfer agent for the
Series B Cumulative Convertible Preferred Stock; and
(2) a notice stating the conversion
price has been adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is required, such
notice shall be mailed by the Corporation to all record holders of shares of
Series B Cumulative Convertible Preferred Stock at their last addresses as they
shall appear upon the stock transfer books of the Corporation.
(d) No Fractional Shares. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued upon conversion
of Series B Cumulative Convertible Preferred Stock. If more than one
certificate representing shares of Series B Cumulative Convertible Preferred
Stock shall be surrendered for conversion at one time by the same holder, the
number of full shares issuable upon conversion thereof shall be computed on the
basis of the aggregate number of shares of Series B Cumulative Convertible
Preferred Stock so surrendered. Instead of any fractional share of Common
Stock that would otherwise be issuable upon conversion of any shares of Series
B Cumulative Convertible Preferred Stock, the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
same fraction of the market price per share of Common Stock (as determined by
the Board of Directors or in any manner prescribed by the Board of Directors,
which, so long as the Common Stock is listed on the Primary Exchange, shall be
the reported last sale price regular way on the Primary Exchange) at the close
of business on the day of conversion.
(e) Reclassification, Consolidation, Merger, or Sale of
Assets. If any capital reorganization or reclassification of the capital stock
of the Corporation, or consolidation or merger of the Corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be
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entitled to receive stock, securities, cash or other property with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holders of the Series B Cumulative Convertible
Preferred Stock shall have the right to acquire and receive upon conversion of
the Series B Cumulative Convertible Preferred Stock, which right shall be pari
passu with the rights of holders of Parity Dividend Stock and prior to the
rights of the holders of Junior Dividend Stock and Junior Liquidation Stock
(but after and subject to the rights of holders of Senior Dividend Stock and
Senior Liquidation Stock, if any), such shares of stock, securities, cash or
other property issuable or payable (as part of the reorganization,
reclassification, consolidation, merger or sale) with respect to or in exchange
for such number of outstanding shares of Common Stock as would have been
received upon conversion of the Series B Cumulative Convertible Preferred Stock
at the conversion price then in effect, whether or not such stock is then
convertible. The Corporation will not effect any such consolidation, merger or
sale, unless prior to the consummation thereof the successor corporation (if
other than the Corporation) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument (in form
and substance reasonably satisfactory to the holders of a majority of the
outstanding Series B Cumulative Convertible Preferred Stock) mailed or
delivered to the holders of the Series B Cumulative Convertible Preferred Stock
at the last address of each such holder appearing on the books of the
Corporation, the obligation to deliver to each such holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase.
(f) Reservation of Shares; Transfer Taxes; Etc.
(i) The Corporation shall at all times reserve
and keep available, out of its authorized and unissued stock, solely for the
purpose of effecting the conversion of the Series B Cumulative Convertible
Preferred Stock, such number of shares of its Common Stock or Common Stock free
of preemptive rights as shall from time to time be sufficient to effect the
conversion of all shares of Series B Cumulative Convertible Preferred Stock
from time to time outstanding. The Corporation shall from time to time, in
accordance with the laws of the State of Massachusetts, increase the number of
authorized shares of Common Stock if at any time the number of shares of
authorized and unissued Common Stock shall not be sufficient to permit the
conversion of all the then outstanding shares of Series B Cumulative
Convertible Preferred Stock.
(ii) If any shares of Common Stock required to be
reserved for purposes of conversion of the Series B Cumulative Convertible
Preferred Stock hereunder require registration with or approval of any
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<PAGE> 73
governmental authority under any Federal or State law before such shares may be
issued upon conversion, the Corporation will in good faith and as expeditiously
as possible endeavor to cause such shares to be duly registered or approved, as
the case may be. If the Common Stock is listed on the American Stock Exchange
or any other national securities exchange or national quotation service, the
Corporation will list and keep listed on such exchange, upon official notice of
issuance, all shares of Common Stock issuable upon conversion of the shares of
Series B Cumulative Convertible Preferred Stock.
(iii) The Corporation shall pay any and all issue
or other taxes that may be payable in respect of any issue or delivery of
shares of Common Stock on conversion of the Series B Cumulative Convertible
Preferred Stock. The Corporation shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of Common Stock (or other securities or assets) in a name other than
that in which the shares of Series B Cumulative Convertible Preferred Stock so
converted were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Corporation the
amount of such tax or has established, to the satisfaction of the Corporation,
that such tax has been paid.
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall declare or authorize a
redemption or repurchase of in excess of five percent of the then outstanding
shares of Common Stock; or
(ii) the Corporation shall authorize the granting
to all holders of Common Stock of rights or warrants to subscribe for or
purchase any shares of stock of any class or of any other rights or warrants;
or
(iii) of any reclassification of Common Stock
(other than a subdivision or combination of the outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation or merger to which the Corporation is a
party and for which approval of any stockholders of the Corporation shall be
required, or of the sale or transfer of all or substantially all of the assets
of the Corporation or of any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
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<PAGE> 74
then the Corporation shall cause to be filed with the transfer agent for the
Series B Cumulative Convertible Preferred Stock, and shall cause to be mailed
to the holders of record of the Series B Cumulative Convertible Preferred
Stock, at their last addresses as they shall appear upon the stock transfer
books of the Corporation, at least fifteen days prior to the applicable record
date hereinafter specified, a notice stating, as the case may be, (x) the
record date (if any) for the purpose of such dividend, distribution,
redemption, repurchase or granting of rights or warrants or, if no record date
is to be set, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date, if any, as of which it is
expected that holders of shares of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up (but no failure to mail
such notice or any defect therein or in the mailing thereof shall affect the
validity of the corporate action required to be specified in such notice).
(h) Definitions. The following definitions shall apply
to terms used in this Section 8:
(i) "Closing Price" on any day shall mean the
closing sale price regular way on such day or, in case no such sale takes place
on such day, the average of the reported closing bid and asked prices regular
way, in each case on the Primary Exchange, or, if not quoted or listed or
admitted to trading on any national securities exchange or quotation system,
the average of the closing bid and asked prices of the Common Stock on the
over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similarly generally accepted reporting
service, or if not so available in such manner, as furnished by any American
Stock Exchange member firm selected from time to time by the Board of Directors
of the Corporation for that purpose.
(ii) "Determination Date" shall mean, with respect
to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities or other
property or assets or in which the Common Stock (or other applicable security)
is exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive
such cash, securities or other property or assets (whether such date is fixed
by the Board of Directors or by statute, contract or otherwise).
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<PAGE> 75
(iii) "Extraordinary Equity Payment" shall mean:
(1) the declaration or payment on or
after the Original Issue Date by the Corporation, or any of its subsidiaries of
any dividend or distribution on any class or series of its stock other than:
(A) any dividend or
distribution from one subsidiary of the Corporation to a wholly-owned
subsidiary of the Corporation or from a subsidiary of the Corporation to the
Corporation; provided that all of such dividend paid or distribution made, net
of applicable withholding taxes, is received by the Corporation, or such
recipient subsidiary;
(B) any regularly scheduled
(whether or not overdue) periodic cash dividend on the $21.25 Preferred Stock
and Series B Cumulative Convertible Preferred Stock in accordance with the
terms thereof as in effect on the Original Issue Date;
(C) any cash dividends on the
Common Stock after September 1, 2001 that do not exceed in aggregate more than
twenty-five percent (25%) of the Corporation's net income available for
distribution to common shareholders (after preferred dividends); provided,
however, that the Corporation shall have elected, for the preceding four fiscal
quarters, to pay cash dividends on the Series B Cumulative Convertible
Preferred Stock and shall have paid in full such dividends in cash when due;
(2) any repurchases, redemptions,
retirements or other acquisitions directly or indirectly by the Corporation or
any of its subsidiaries on or after the Original Issue Date of any stock of the
Corporation or any of its subsidiaries (other than a wholly-owned subsidiary)
(other than redemptions or repurchases of the Series B Cumulative Convertible
Preferred Stock in accordance with Sections 6 and 7).
(iv) "Fundamental Change" shall mean the
occurrence of any transaction or event in connection with a plan or agreement
to which, in either case, the Corporation is a party pursuant to which all or
substantially all of the shares of Common Stock shall be exchanged for,
converted into, acquired for or constitute solely the right to receive cash,
securities, property or other assets (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise); provided, however, in the
case of a plan involving more than one such transaction or event, for purposes
of adjustment of the conversion price, such Fundamental Change shall be deemed
to have occurred when substantially all of the shares of Common Stock of the
Corporation shall be exchanged for, converted into or acquired for or
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<PAGE> 76
constitute solely the right to receive cash, securities, property or other
assets, but the adjustment shall be based upon the consideration which the
holders of Common Stock received in such transaction or event as a result of
which more than 50% of the shares of Common Stock of the Corporation shall have
been exchanged for, converted into, or acquired for or constitute solely the
right to receive cash, securities, property or other assets; provided, further,
that such term does not include (i) any such transaction or event in which the
Corporation and/or any of its subsidiaries are the issuers of all the cash,
securities, property or other assets exchanged, acquired or otherwise issued in
such transaction or event, or (ii) any such transaction or event in which the
holders of Common Stock receive securities of an issuer other than the
Corporation if, immediately following such transaction or event, such holders
hold a majority of the securities having the power to vote normally in the
election of directors of such other issuer outstanding immediately following
such transaction or other event.
(v) "Section 8(c)(iv)
Distribution" shall mean evidences of the Corporation's indebtedness, shares of
any class of stock, or assets, including securities, but excluding any rights
or warrants referred to in subparagraph (ii) of Section 8(c), excluding any
dividend or distribution paid in cash, and excluding any dividend or
distribution referred to in subparagraph (i) of Section 8(c).
(vi) "Trading Day" shall mean a day
on which the national securities exchange or the NASDAQ National Market System
used to determine the Closing Price is open for the transaction of business or
the reporting of trades.
(i) Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of Common
Stock pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation and the investment of
additional optional amounts in shares of Common Stock under any such plan, and
the issuance of any shares of Common Stock or options or rights to purchase
such shares pursuant to any employee benefit plan or program of the Corporation
or pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security outstanding as of the date the Series B Cumulative
Convertible Preferred Stock was first designated (except as expressly provided
in Section 8(c)(i) or 8(c)(ii) with respect to certain events under the Rights
Agreement), and any issuance of Rights (as hereinafter defined), shall not be
deemed to constitute an issuance of Common Stock or exercisable, exchangeable
or convertible securities by the Corporation or any of its subsidiaries to
which any of the adjustment provisions described above applies. There shall
also be no adjustment of the conversion price in case of the issuance of any
stock (or securities convertible into or exchangeable for stock) of
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the Corporation except as specifically described in this Section 8. If any
action would require adjustment of the conversion price pursuant to more than
one of the provisions described above, only one adjustment shall be made and
such adjustment shall be the amount of adjustment which has the highest
absolute value to the holders of Series B Cumulative Convertible Preferred
Stock.
(j) Preferred Share Purchase Rights. So long as
Preferred Share Purchase Rights, of the kind authorized and declared on
September 23, 1988 and distributed by the Corporation in September 1988 as the
same have been and may hereafter be amended ("Rights"), are attached to the
outstanding shares of Common Stock of the Corporation, each share of Common
Stock issued upon conversion of the shares of Series B Cumulative Convertible
Preferred Stock prior to the earliest of any Distribution Date (as defined in
the Rights Agreement), the date of redemption of the Rights or the date of
expiration of the Rights shall be issued with Rights in an amount equal to the
amount of Rights then attached to each such outstanding share of Common Stock.
(k) Certain Additional Rights. In case the Corporation
shall, by dividend or otherwise, authorize, declare or make a distribution on
its Common Stock referred to in Section 8(c)(iv) or Section 8(c)(v), the holder
of each share of Series B Cumulative Convertible Preferred Stock, upon the
conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the conversion price adjustment in respect of
such distribution pursuant to Section 8(c)(iv) or Section 8(c)(v), shall be
entitled to receive for each share of Common Stock into which such share of
Series B Cumulative Convertible Preferred Stock is converted, the portion of
the evidences of indebtedness, shares of stock, cash and assets so distributed
applicable to one share of Common Stock; provided, however, that, at the
election of the Corporation (whose election shall be evidenced by a vote of the
Board of Directors) with respect to all holders so converting, the Corporation
may, in lieu of distributing to such holder any portion of such distribution
not consisting of cash or securities of the Corporation, pay such holder an
amount in cash equal to the fair market value thereof (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
vote of the Board of Directors). If any conversion of a share of Series B
Cumulative Convertible Preferred Stock described in the immediately preceding
sentence occurs prior to the payment date for a distribution to holders of
Common Stock which the holder of the share of Series B Cumulative Convertible
Preferred Stock so converted is entitled to receive in accordance with the
immediately preceding sentence, the Corporation may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
holder a due bill for the evidences of indebtedness, shares of stock, cash or
assets to which
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such holder is so entitled; provided that such due bill (i) meets any
applicable requirements of the principal national securities exchange or other
market on which the Common Stock is then traded and (ii) requires payment or
delivery of such evidences of indebtedness, shares of stock, cash or assets no
later than the date of payment or delivery thereof to holders of Common Stock
receiving such distribution. The rights provided in this Section 8(k) with
respect to distribution referred to in Section 8(c)(iv) or Section 8(c)(v)
shall be in lieu of, and not in addition to, the rights accorded to holders of
Series B Cumulative Convertible Preferred Stock in those Sections.
(l) Other. Notwithstanding any other provision in this
Section 8 to the contrary, if the Corporation shall, by dividend or otherwise,
authorize, declare or make a distribution on its Common Stock referred to in
Section 8(c)(iv) and such distribution shall include shares of stock of one or
more corporations that immediately prior to such distribution was or would have
been a subsidiary (a "Spin-Off"), the holder of each share of Series B
Cumulative Convertible Preferred Stock shall be entitled to receive its pro
rata share of the securities distributed in the Spin-Off as if such holder had
been the holder of record of the number of shares of Common Stock into which
the Series B Cumulative Convertible Preferred Stock would be convertible (but
for any restrictions on convertibility contained in this Certificate of Vote)
as of the record date for such distribution. The rights provided in this
Section 8(l) with respect to Spin-Offs shall be in lieu of, and not in addition
to, the rights accorded to holders of Series B Cumulative Convertible Preferred
Stock with respect to Spin-Offs in Section 8(c)(iv).
9. Voting Rights.
(a) General. The holders of shares of Series B
Cumulative Convertible Preferred Stock shall each initially have Nineteen and
Four Thousand Seven Hundred and Sixty-Two Hundred-Thousandths (19.04762) votes
for each share held, which such shares shall be voted as a class with the
holders of the Common Stock on all matters on which the Common Stock may vote,
except as set forth below. Upon the occurrence of any event that causes an
adjustment to the conversion price pursuant to Section 8(c), the number of
votes possessed by each share of Series B Cumulative Convertible Stock shall be
adjusted such that the number of votes possessed by each such share
immediately after the event giving rise to the adjustment under Section 8(c)
shall be equal to (x) the number of votes possessed by such share immediately
preceding such event, multiplied by (y) the conversion price immediately
preceding such event, divided by (z) the conversion price immediately after
such event. Any shares of Series B Cumulative Convertible Preferred Stock held
by the Corporation or any entity controlled by
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<PAGE> 79
the Corporation shall not have voting rights hereunder and shall not be counted
in determining the presence of a quorum.
(b) Special Default Voting Rights.
(i) Whenever a Special Default exists, (1) the
number of members of the Board of Directors shall be increased by such number
as is necessary to allow the election of the directors specified in clause (2),
and (2) the holders of the Series B Cumulative Convertible Preferred Stock,
voting separately as a class, shall have the right to elect an additional
number of directors to the Board of Directors such that directors selected by
the holders of the Series B Cumulative Convertible Preferred Stock pursuant to
the Shareholders Agreement, plus the directors elected by such holders voting
as a class under this clause constitutes a majority of Board. Notwithstanding
the foregoing sentence, the holders of the Series B Cumulative Convertible
Preferred Stock (voting separately as a class) will not have the right to vote
for additional directors pursuant to this Section 9(b) where (x) such holders
have exercised their right to elect additional directors pursuant to Section
7(e)(iii), and (y) such additional directors continue to serve as such. The
right of the holders of the Series B Cumulative Convertible Preferred Stock to
vote for such additional directors shall terminate at the earlier to occur of
(A) when such Special Default no longer exists or (ii) two years after the
election of directors pursuant to clause (2) of the first sentence of this
Section. The term of office of all directors so elected shall terminate
immediately upon the termination of the right of the holders of the Series B
Cumulative Convertible Preferred Stock to vote for such additional directors,
and the number of directors of the Board of Directors shall immediately
thereafter be reduced.
(ii) The foregoing right of the holders of the
Series B Cumulative Convertible Preferred Stock with respect to the election of
additional directors may be exercised at each annual meeting of stockholders or
at any special meeting of stockholders held for such purpose. If the right to
elect directors shall have accrued to the holders of the Series B Cumulative
Convertible Preferred Stock more than thirty (30) days preceding the date
established for the next annual meeting of stockholders, the President of the
Corporation shall, within five (5) days after the delivery to the Corporation
at its principal office of a written request for a special meeting signed by
the holders of at least 10% of all outstanding shares of the Series B
Cumulative Convertible Preferred Stock, call a special meeting of the holders
of the Series B Cumulative Convertible Preferred Stock to be held as promptly
as practicable after the delivery of such request for the purpose of electing
such additional directors.
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(iii) The holders of the Series B Cumulative
Convertible Preferred Stock referred to above voting as a class shall have the
right to remove with or without cause at any time and replace any directors
such holders shall have elected pursuant to this Section 9(c) and the holders
of each other class of stock of the Corporation shall not have the right to
remove any such directors.
(c) Class Voting Rights. So long as any shares of the
Series B Cumulative Convertible Preferred Stock is outstanding, the Corporation
shall not, directly or indirectly, without the affirmative vote or consent of
the holders of at least 66 2/3% (unless a higher percentage shall then be
required by applicable law or the Corporation's Articles) of all outstanding
shares of the Series B Cumulative Convertible Preferred Stock voting separately
as a class: (i) amend, alter or repeal any provision of the Articles,
Certificate of Vote, or the bylaws of the Corporation, if such amendment,
alteration or repeal would alter the contract rights, as expressly set forth
herein, of the Series B Cumulative Convertible Preferred Stock so as to
adversely affect the rights of the holders thereof or the holders of the Common
Stock, (ii) create, authorize or issue, or reclassify shares of any authorized
stock of the Corporation into, or increase the authorized amount of, any Senior
Dividend Stock, Senior Liquidation Stock, Parity Dividend Stock, or Parity
Liquidation Stock or any security convertible into such senior or Parity Stock,
or (iii) approve a Fundamental Change.
10. Outstanding Shares. For purposes of this Certificate of Vote,
Supplementary, all shares of Series B Cumulative Convertible Preferred Stock
issued by the Corporation shall be deemed outstanding except (i) from the date
fixed for redemption pursuant to Section 6 hereof, all shares of Series B
Cumulative Convertible Preferred Stock that have been so called for redemption
under Section 6, to the extent provided thereunder; (ii) from the date of
surrender of certificates representing shares of Series B Cumulative
Convertible Preferred Stock, all shares of Series B Cumulative Convertible
Preferred Stock converted into Common Stock or repurchased pursuant to Section
7 hereof; and (iii) from the date of registration of transfer, all shares of
Series B Cumulative Convertible Preferred Stock held of record by the
Corporation or any majority-owned subsidiary of the Corporation.
- 30 -
<PAGE> 81
11. Transfer Restrictions.
(a) Legends on Series B Cumulative Convertible Preferred
Stock and Common Stock. The certificates representing shares of Series B
Cumulative Convertible Preferred Stock shall, unless otherwise agreed by the
Corporation and the holders of any such certificates, bear a legend
substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES
ISSUABLE UPON CONVERSION OR EXCHANGE HEREOF MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO PERINI CORPORATION TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
IN ADDITION, THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
HYPOTHECATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS FURTHER
SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN THE RESTATED ARTICLES
OF ORGANIZATION OF PERINI CORPORATION, IN THE CERTIFICATE OF VOTE
GOVERNING THESE SHARES AND IN A STOCK PURCHASE AGREEMENT DATED AS OF
JULY __, 1996, A COPY OF EACH OF WHICH IS ON FILE WITH PERINI
CORPORATION AND WILL BE FURNISHED BY THE CORPORATION TO THE
STOCKHOLDER ON REQUEST AND WITHOUT CHARGE."
(b) Transfer Agent Requirements. The transfer agent
(which may be the Corporation) for the Series B Cumulative Convertible
Preferred Stock shall not be required to accept for registration of transfer
any shares of Series B Cumulative Convertible Preferred Stock bearing the
legend contained in paragraph (a) above, except upon presentation of evidence
satisfactory to transfer agent that the restrictions on transfer of shares of
the Series B Cumulative Convertible Preferred Stock referred to in the legend
in paragraph (a) have been complied with, all in accordance with such
reasonable regulations as the Corporation may
- 31 -
<PAGE> 82
from time to time agree with the transfer agent for shares of the
Series B Cumulative Convertible Preferred Stock.
12. Status of Acquired Shares. Shares of Series B Cumulative
Convertible Preferred Stock redeemed or repurchased by the Corporation,
received upon conversion pursuant to Section 8 or otherwise acquired by the
Corporation will be restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to class, and may thereafter be issued,
but not as shares of Series B Cumulative Convertible Preferred Stock.
13. Special Covenants.
(a) Nomination of Directors. Concurrently with the
issuance of the Series B Cumulative Convertible Preferred Stock, the
Corporation shall elect to the board of directors three directors designated by
the holders of such stock (such directors, together with their replacements as
provided below, the "Designated Directors"), one of whom shall be a Class I
director, one of whom shall be a Class II director, and one of whom shall be a
Class III director.
(i) In the event that any Designated Director
shall resign, be unable to serve, or be removed for cause, the holders of the
Series B Cumulative Convertible Preferred Stock and the Conversion Shares
issued to such holders (and not disposed of) shall, by a majority vote of the
voting power thereof, have the right to designate a replacement to serve as
Designated Director until the next meeting of shareholders.
(ii) Except as provided below, at any time when
the term of a Designated Director shall have ended and there shall be a meeting
of shareholders of the Corporation to elect directors, the Corporation shall
nominate for election to the board of directors, as a successor to any
Designated Director serving pursuant to Section 13(a) or clause (i) of such
provision, such person as is designated to be a Designated Director by the
holders of the Series B Cumulative Convertible Preferred Stock and the
Conversion Shares issued to such holders (and not disposed of), by a majority
vote of the voting power thereof. Upon the reasonable request of the
Corporation, the holders of Conversion Shares described in the preceding
sentence shall certify to the Corporation their holdings of Conversion Shares.
(iii) In the event that the holders of the Series
B Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares representing more than sixty-six and two-thirds percent (66-2/3%) and
less than or equal to eighty percent (80%) of the voting power of the Series B
- 32 -
<PAGE> 83
Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus
any payment-in-kind dividends paid thereon), the number of Designated Directors
shall be reduced to two. If there are then more than two Designated Directors
serving on the board, the holders of the Series B Cumulative Convertible
Preferred Stock and the Conversion Shares issued to such holders (and not
disposed of) shall, by a majority vote of the voting power thereof, remove one
such Designated Director and the holders of such stock shall not have any
right, pursuant to clause (ii) or otherwise, to cause the Corporation to
nominate a designated successor to such director.
(iv) In the event that the holders of the
Series B Cumulative Convertible Preferred Stock dispose of voting securities of
the Corporation representing more than eighty percent (80%) and less than or
equal ninety percent (90%) of the voting power of the Series B Cumulative
Convertible Preferred Stock issued on the Original Issue Date (plus any
payment-in-kind dividends paid thereon), the number of Designated Directors
shall be reduced to one. If there is then more than one Designated Director
serving on the board, the holders of the Series B Cumulative Convertible
Preferred Stock and the Conversion Shares issued to such holders (and not
disposed of) shall, by a majority vote of the voting power thereof, remove one
such Designated Director and the holders of such stock shall not have any
right, pursuant to clause (ii) or otherwise, to cause the Corporation to
nominate a designated successor to such director.
(v) In the event that the holders of the
Series B Cumulative Convertible Preferred Stock dispose of voting securities of
the Corporation representing more than ninety percent (90%) of the voting power
of the Series B Cumulative Convertible Preferred Stock issued on the Original
Issue Date (plus any payment-in-kind dividends paid thereon), there shall be no
Designated Directors and any Designated Directors then serving on the board
shall be removed without any further action of the holders of such stock.
(vi) The right to nominate directors
pursuant to this provision is in addition to, and not in limitation of, any
other rights and powers of the Series B Cumulative Convertible Preferred Stock.
Directors nominated by the holders of the Series B Cumulative Convertible
Preferred Stock in their capacity as holders of capital stock of the
Corporation and not pursuant to clause (i), (ii), or (iii) above are not
Designated Directors for purposes of this Certificate of Vote.
(vii) For purposes of this Section, "voting
power" shall mean the number of votes each such share possesses in the election
of directors.
- 33 -
<PAGE> 84
(b) Appointment to Executive Committee. At any time at
which the holders of the Series B Cumulative Convertible Preferred Stock shall
have the right to nominate directors for election to the board pursuant to
Section 13(a) hereof, such holders shall also have the right to designate a
like number of persons from among the members of the board of directors to be
members of the Executive Committee of the board (the "Designated Executive
Committee Members"). In the event that any Designated Executive Committee
Member shall resign, be unable to serve, or be removed for cause, the holders
of the Series B Cumulative Convertible Preferred Stock and the Conversion
Shares issued to such holders (and not disposed of) shall, by a majority vote
of the voting power thereof, have the right to designate a replacement
Designated Executive Committee Member.
(c) Approval of Certain Actions. Neither the Corporation
nor the Board shall take any of the following actions without the approval of a
majority of the members of the Executive Committee of the Board: (A) any
borrowing or guarantee by the Corporation exceeding $15 million, (B) except for
issuance of stock or stock options pursuant to the Corporation's incentive
compensation plans and programs, any issuance of stock (whether common or
preferred, whether voting or non-voting, whether junior or senior to the Series
B Cumulative Convertible Preferred Stock) other than Common Stock in an
aggregate amount not exceeding five percent (5%) of the Common Stock issued and
outstanding on the Original Issue Date, (C) any strategic alliance (other than
a construction joint venture) involving a capital commitment by the Corporation
exceeding $5 million, (D) any asset sale by the Corporation or lease by it as
lessor exceeding $5 million (other than equipment dispositions in the normal
course of business); and (E) any redemption or amendment of the Rights or the
preferred stock of the Corporation issuable upon the exercise of such Rights,
or any amendment of the Rights Agreement; provided, however, that for purposes
of this Section 13(c), approval of the Executive Committee shall not be
required for any decision by the Board of Directors to redeem the Series B
Cumulative Convertible Preferred Stock pursuant to Section 6(a).
Notwithstanding the foregoing sentence, the board of directors of the
Corporation may take any of the actions specified in the preceding sentence if,
after having consulted with and considered the advice of outside counsel, it
has reasonably determined in good faith that the failure of the board to take
such action would be likely to cause the members of such board to breach their
fiduciary duties under applicable law.
14. Preemptive Rights. Holders of shares of Series B Cumulative
Convertible Preferred Stock are not entitled to any preemptive or subscription
rights in respect of any securities of the Corporation.
- 34 -
<PAGE> 85
15. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid
under applicable law.
- 35 -
<PAGE> 86
EXHIBIT 3.12
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of September __, 1996 (this
"Agreement"), is by and among PB CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("PB"), PERINI CORPORATION, a Massachusetts corporation (the
"Corporation"), DAVID B. PERINI ("D. Perini"), [PERINI MEMORIAL FOUNDATION (the
"Foundation"),] BART PERINI ("B. Perini"), [DAVID B. PERINI TESTAMENTARY TRUST
(the "Trust"),] Ronald Tutor ("Tutor"), and TUTOR-SALIBA CORPORATION
("Tutor-Saliba"). PB, D. Perini, the Foundation, B. Perini, the Trust, Tutor,
and Tutor-Saliba are referred to collectively herein as the "Stockholders" and
each individually as a "Stockholder."
WHEREAS, each Stockholder is the record and beneficial owner of (1)
that number of shares of Common Stock, par value $1.00 per share ("Common
Stock"), (2) that number of Series B Cumulative Convertible Preferred Stock
("Series B Cumulative Convertible Preferred Stock"), and (3) that number of
Series A Junior Participating Cumulative Preferred Stock ("Series A Junior
Participating Stock") of the Corporation, set forth opposite such Stockholder's
name on Exhibit A attached hereto (Common Stock, Series B Cumulative
Convertible Preferred Stock, and Series A Junior Participating Stock together
with any other series or classes of voting stock to be issued by the
Corporation, collectively the "Perini Voting Stock"); and
WHEREAS, pursuant to a "Stock Purchase and Sale Agreement, dated July
__, 1996, by and among PB, Richard C. Blum & Associates ("RCBA"), and the
Corporation (the "Stock Purchase Agreement"), the Corporation has agreed to
sell to PB, and PB has agreed to purchase from the Corporation, 150,150 shares
of Series B Cumulative Convertible Preferred Stock in consideration for the
payment to the Corporation of $30,030,000.00; and
WHEREAS, PB has made the execution of this Voting Agreement a
condition to the purchase of the shares of Series B Cumulative Convertible
Preferred Stock and regards this Voting Agreement as integral to the economic
value of such securities; and
WHEREAS, PB is simultaneously purchasing such securities; and
WHEREAS, the Stock Purchase Agreement contemplates that the shares of
Series B Cumulative Convertible Preferred Stock issued to PB will be
exchangeable for shares of Common Stock pursuant to the terms of the Stock
Purchase Agreement; and
WHEREAS, the Stock Purchase Agreement requires the Corporation to
submit to, and to recommend and solicit proxies for, and otherwise to use its
best efforts to obtain, the approval of its stockholders to the adoption of the
Stock Purchase Agreement and the other Transaction Documents (as defined in the
Stock Purchase Agreement) and the transactions contemplated therein, including
but not limited to the conversion terms of the Series B Cumulative Convertible
<PAGE> 87
- 2 -
Preferred Stock at the next regular or special meeting of the stockholders of
the Corporation (the "Meeting"); and
WHEREAS, in order to induce PB to enter into the Stock Purchase
Agreement, the Stockholders desire to enter into this Agreement, which shall
inure to the benefit of PB;
NOW, THEREFORE, for and in consideration of $10.00 and the premises
and mutual covenants and agreements hereinafter contained, the Stockholders
hereby agree as follows:
1. Voting of Shares.
(a) Election of Directors. At any time at which
stockholders or directors of the Corporation will have the right to or will
vote for or consent in writing to the election of directors of the Corporation,
each Stockholder hereby agrees to vote or cause to be voted all Perini Voting
Stock owned or hereafter acquired by him or it, or over which he or it has
voting control, in favor of the election to the Board of Directors of three
representatives designated by PB. At any time during the term of this
Agreement, the Corporation shall cause the nomination for election to the Board
of Directors of the designated representatives of PB and shall call such
Stockholders' meetings as may be necessary or requested by PB to effect any
such election. The representatives designated by PB shall be reasonably
satisfactory to the Corporation.
(b) Vacancies and Removal. Each of the Directors
designated pursuant to Section 1(a) shall be elected at any annual or special
meeting of stockholders (or by written consent in lieu of a meeting of
stockholders) and shall serve until his successor is elected and qualified or
until his earlier resignation or removal. The Stockholders shall vote all of
their Shares to cause the director designated by PB to be removed during his
term of office, when, and only when, they are so directed in writing by PB.
(c) Ratification of Stock Issuance. Each Stockholder
hereby agrees to vote or cause to be voted all Perini Voting Stock owned or
hereafter acquired by him or it, or over which he or it has voting control, in
favor of the "ratification -- at the Meeting, or at any other special or
annual meeting of the stockholders of the Corporation, or by any written
consent -- of the issuance to PB of the Series B Cumulative Convertible
Preferred Stock (which such stock is convertible into Common Stock of the
Corporation) pursuant to the Stock Purchase Agreement. The Corporation shall
call such Stockholders' meetings as may be necessary or requested by PB to
effect any such ratification.
2. Term. This Agreement shall remain in force and effect until
the holding of the Meeting at which the ratification of the Stock Purchase
Agreement and the transactions and actions contemplated thereby is submitted to
the shareholders of the Corporation for a vote.
3. Changes in Common Stock. In the event that subsequent to the
date of this Agreement any shares or other securities (other than any shares or
securities of another
<PAGE> 88
- 3 -
corporation issued to the stockholders of the Corporation pursuant to a plan of
merger) are issued on, or in exchange for, any of the shares of the Perini
Voting Stock held by the Stockholders by reason of any stock dividend, stock
split, consolidation of shares, reclassification, or consolidation involving
the Corporation, such shares or securities shall be deemed to be Perini Stock
for purposes of this Agreement.
4. Representations of Stockholders. Each Stockholder hereby
represents and warrants that (i) he owns and has the right to vote the number
of shares of the Perini Voting Stock set forth opposite his name on Exhibit A
attached hereto, (ii) each of the Stockholders has full power to enter into
this Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement that would conflict with the purposes or provisions of this
Agreement, and (iii) he will not take any action inconsistent with the purposes
and provisions of this Agreement.
5. Enforceability; Validity. Irreparable damage would result in
the event that the provisions of this Agreement are not specifically enforced.
Therefore, the rights to, or obligations of, the parties hereto shall be
enforceable in a court of equity by a decree of specific performance and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies, and all other remedies provided for in this
Agreement, shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement or
otherwise.
6. Benefit. Subject to the provisions of Section 9, this
Agreement shall be binding upon, and inure to the benefit of, the respective
parties hereto and their successors, assigns, and transferees.
7. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Massachusetts applicable to agreements made and to be performed entirely within
the State of Massachusetts
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Legending. Upon the execution of this Agreement, each
certificate or other instrument for Perini Voting Securities now registered or
to be issued in the name of the Stockholders shall be endorsed by the Secretary
of the Corporation as follows:
"This certificate is subject to that certain Voting Agreement dated as
of July __, 1996 by and among the Corporation and certain of the
holders of its voting stock, a copy of which is on file in the office
of the Corporation and is available upon request of any Stockholder
without charge."
<PAGE> 89
- 4 -
Provided, however, that each of the Trust and the Foundation shall be entitled
to withold from the legending required by this Section up to ten percent (10%)
of its Perini Voting Stock and that such stock -- if disposed of to an
unaffiliated third party prior to the Meeting -- shall not be subject to this
Voting Agreement.
10. Terms. All terms not otherwise defined in this Agreement
shall have the meaning set forth in the Stock Purchase Agreement.
IN WITNESS WHEREOF, the Stockholders have executed this Agreement as
of the date first above written.
PERINI CORPORATION PB CAPITAL PARTNERS, L.P.
___________________________________ ___________________________________
By:__________________________ By: ____________________________
Its:___________________________ Its:____________________________
DAVID B. PERINI [PERINI MEMORIAL FOUNDATION
__________________________________ ___________________________________
By:______________________________
Its:______________________________]
BART PERINI [DAVID B. PERINI TESTAMENTARY TRUST
___________________________________ ___________________________________
By:______________________________
Its:_____________________________]
RONALD TUTOR TUTOR_SALIBA CORP.
___________________________________ ___________________________________
By:______________________________
Its:____________________________
<PAGE> 90
EXHIBIT A
---------
<TABLE>
<CAPTION>
================================================================================
Series B Cumulative Series A Junior
Convertible Preferred Participating
Common Stock Stock Preferred Stock
================================================================================
<S> <C> <C>
PB Capital Partners, L.P.
- --------------------------------------------------------------------------------
David Perini
- --------------------------------------------------------------------------------
David Perini Foundation
- --------------------------------------------------------------------------------
Bart Perini
- --------------------------------------------------------------------------------
Perini Testamentary Trust
- --------------------------------------------------------------------------------
Tutor-Saliba Corporation
- --------------------------------------------------------------------------------
Ronald Tutor
================================================================================
</TABLE>
<PAGE> 91
EXHIBITS TO STOCK PURCHASE AND SALE AGREEMENT
Exhibit 1.6 Amendments to Bylaws of Seller
Exhibit 1.7 Certificate of Vote of Directors classifying 500,000
shares as Series B Cumulative Convertible Preferred
Stock
Exhibit 1.32* Registration Rights Agreement
Exhibit 3.12 Voting Agreement
Exhibit 3.6* Terms of Employment Contracts for David B. Perini,
Richard J. Rizzo, John H. Schwartz, Bart Perini and
Donald E. Unbekant
Exhibit 3.9* Seller Credit and Bonding Agents
Exhibit 5.1* Articles of Organization and Bylaws of Seller
Exhibit 5.20(a)* List of Seller Plans
- ------------------------------
* Not filed with 13D
