SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
January 17, 1997
(Date of Earliest Event reported)
PERINI CORPORATION
(Exact name of registrant as specified in charter)
MASSACHUSETTS 1-6314 04-1717070
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
73 MT. WAYTE AVENUE, FRAMINGHAM, MASSACHUSETTS 01701
(Address of principal executive offices, including zip code)
(508) 628-2000
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS.
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Change in Real Estate Strategy.
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On February 14, 1997, Perini Corporation (the "Company") announced that
it had completed a review of its current real estate strategy following the sale
of shares of newly issued Series B Cumulative Convertible Preferred Stock for
$30,030,000 to an investor group, as more fully described below. The
transaction, and the resulting improvement in the Company's balance sheet,
provides the Company with an opportunity to substantially improve liquidity
during 1997 and beyond by changing its strategy with respect to certain real
estate assets from one of holding them through the development and stabilization
periods to a new strategy of placing these properties on the market now. This
change in strategy substantially reduces the estimated future cash flow from
these properties and has resulted in a non-cash charge taken in the fourth
quarter of 1996 in an aggregate amount of approximately $80 million. In
furtherance of the new strategy, Perini Land and Development Company, the
Company's wholly owned real estate development subsidiary, recently signed a
letter of intent to sell its interest in the Resort at Squaw Creek, Squaw
Valley, California, to its partner, HCV Pacific Investors III, a California
limited partnership, for a purchase price of $21 million.
Issuance of Series B Preferred Stock.
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On January 17, 1997 (the "Closing Date"), the Company sold an aggregate
of 150,150 shares (the "Shares") of Series B Cumulative Convertible Preferred
Stock ("Series B Preferred Stock") to an investor group made up of PB Capital
Partners, L.P. ("PB Capital"), The Common Fund for Non-Profit Organizations
("The Common Fund"), and The Union Labor Life Insurance Company ("ULLICO") on
behalf of its Separate Account P, a commingled fund available for investment by
qualified pension plans. The issuance and sale of the Shares, as well as certain
amendments to the By-Laws of the Company, were approved by the stockholders of
the Company at a special meeting on that date, and are described in the proxy
statement with respect to such special meeting filed by the Company with the
Securities and Exchange Commission on December 17, 1996 (the "Proxy Statement").
The transaction is described in the Proxy Statement under the section captioned
"Description of Transaction."
PB Capital acquired 92,350 Shares for a total consideration of
$18,470,000, which consideration was paid out of funds provided to PB Capital by
its limited partners. Richard C. Blum & Associates, L.P. ("RCBA") acquired
23,300 Shares on behalf of The Common Fund for a total consideration of
$4,660,000, which consideration was paid by The Common Fund. ULLICO acquired
34,500 shares for a total consideration of $6,900,000, which consideration was
paid out of funds provided to ULLICO by unit holders of ULLICO's Separate
Account P.
The Shares were sold pursuant to (i) a Stock Purchase and Sale
Agreement dated as of July 24, 1996 by and among the Company, PB Capital and
RCBA, as amended, (ii) a Stock Assignment and Assumption Agreement dated as of
December 13, 1996 by and among the Company, PB Capital and ULLICO, and (iii) a
Stock Assignment and Assumption
Agreement dated as of January 17, 1997 by and among the Company, PB Capital,
RCBA and The Common Fund.
The Company amended and restated its By-Laws as of the Closing Date.
The By-Law amendments are described in the Proxy Statement under the section
captioned "Proposal 2:
Approval of Amendment of By-Laws."
The holders of the Series B Preferred Stock designated Michael R.
Klein, Douglas J. McCarron, and Ronald N. Tutor (the "Designated Directors") as
their nominees, and they were elected directors of the Company as of January 17,
1997. All three Designated Directors were appointed to the newly reconstituted
Executive Committee of the Board of Directors.
On the Closing Date, PB Capital, David B. Perini, Perini Memorial
Foundation, David B. Perini Testamentary Trust, Ronald N. Tutor and Tutor-Saliba
Corporation entered into a Voting Agreement. The Voting Agreement is described
in the Proxy Statement under the section captioned "Voting Agreement" and is
filed herewith as an exhibit.
On the Closing Date, the Company entered into a Registration Rights
Agreement with PB Capital and ULLICO and a Management Agreement with Ronald N.
Tutor and Tutor-Saliba Corporation. The Registration Rights Agreement and
Management Agreement are described in the Proxy Statement under the sections
captioned "Registration Rights Agreement" and "Management Agreement,"
respectively, and are filed herewith as exhibits.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Exhibits
3.2 By-Laws of the Company, as amended and restated as of January
17, 1997 (filed herewith).
4.5 Stock Purchase and Sale Agreement dated as of July 24, 1996 by
and among the Company, PB Capital and RCBA, as amended (filed
as exhibit 4.5 to the Company's Quarterly Report on Form
10-Q/A for the fiscal quarter ended September 30, 1996 and
incorporated herein by reference).
4.8 Certificate of Vote of Directors Establishing a Series of
Preferred Stock, dated January 16, 1997 (filed herewith).
4.9 Stock Assignment and Assumption Agreement dated as of December
13, 1996 by and among the Company, PB Capital and ULLICO
(filed as exhibit 4.1 to the Schedule 13D filed by ULLICO on
December 16, 1996 and incorporated herein by reference).
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4.10 Stock Assignment and Assumption Agreement dated as of January
17, 1997 by and among the Company, RCBA and The Common Fund
(filed herewith).
4.11 Voting Agreement dated as of January 17, 1997 by and among PB
Capital, David B. Perini, Perini Memorial Foundation, David B.
Perini Testamentary Trust, Ronald N. Tutor, and Tutor-Saliba
Corporation (filed herewith).
4.12 Registration Rights Agreement dated as of January 17, 1997 by
and among the Company, PB Capital and ULLICO (filed herewith).
10.16 Management Agreement dated as of January 17, 1997 by and among
the Company, Ronald N. Tutor and Tutor-Saliba Corporation
(filed herewith).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PERINI CORPORATION
Date: February 14, 1997 By:/s/ David D. Perini
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David B. Perini
Chairman and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit
Number Description
3.2 By-Laws of the Company, as amended and restated as of January
17, 1997 (filed herewith).
4.5 Stock Purchase and Sale Agreement ("Agreement") dated as of
July 24, 1996 by and among the Company, PB Capital and RCBA,
as amended (filed as exhibit 4.5 to the Company's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30,
1996 and incorporated herein by reference).
4.8 Certificate of Vote of Directors Establishing a Series of
Preferred Stock, dated January 16, 1997 (filed herewith).
4.9 Stock Assignment and Assumption Agreement dated as of December
13, 1996 by and among the Company, PB Capital and ULLICO
(filed as exhibit 4.1 to the Schedule 13D filed by ULLICO on
December 16, 1996 and incorporated herein by reference).
4.10 Stock Assignment and Assumption Agreement dated as of January
17, 1997 by and among the Company, RCBA and The Common Fund
(filed herewith).
4.11 Voting Agreement dated as of January 17, 1997 by and among PB
Capital, David B. Perini, Perini Memorial Foundation, David B.
Perini Testamentary Trust, Ronald N. Tutor, and Tutor-Saliba
Corporation (filed herewith).
4.12 Registration Rights Agreement dated as of January 17, 1997 by
and among the Company, PB Capital and ULLICO (filed herewith).
10.16 Management Agreement dated as of January 17, 1997 by and among
the Company, Ronald N. Tutor and Tutor-Saliba Corporation
(filed herewith).
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EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS OF PERINI CORPORATION
As amended through January 17, 1997
SECTION 1. Articles of Organization
These by-laws shall be subject to the provisions of the articles of
organization of the corporation, as amended and in effect from time to time.
SECTION 2. Stockholders
2.1 Annual Meeting. The annual meeting of the stockholders shall be
held within six months after the end of the fiscal year of the corporation at
the hour, date and place which is fixed by the board of directors, the chairman
of the board or the president.
2.2 Special Meeting in Place of Annual Meeting. If no annual meeting
has been held in accordance with the foregoing provisions, a special meeting of
the stockholders may be held in place thereof, and any action taken at such
special meeting shall have the same force and effect as if taken at the annual
meeting and in such case all references in these by-laws to the annual meeting
of the stockholders shall be deemed to refer to such special meeting. Any such
special meeting shall be called as provided in Section 2.3.
2.3 Special Meetings. Special meetings of stockholders may be called by
the chairman of the board, by the president or by the board of directors.
Special meetings shall be called by the clerk, or in case of the death, absence,
incapacity or refusal of the clerk, by any other officer, upon written
application of one or more stockholders who hold at least forty percent (40%) in
interest of the capital stock entitled to vote at such meeting.
2.4 Place of Meetings. Meetings of the stockholders may be held
anywhere within the United States at such place as shall be fixed by the
chairman of the board, the president or the directors. Any adjourned session of
any meeting of the stockholders shall be held at the same city or town as the
initial session, or within Massachusetts, in either case at the place designated
in the vote of adjournment.
2.5 Notice of Meetings. A written notice of each meeting of
stockholders, stating the place, date and hour and the purposes of the meeting,
shall be given at least ten days before the meeting to each stockholder entitled
to vote there at and to each stockholder who, by law, by the articles of
organization or by these by-laws, is entitled to notice, by leaving such notice
with him or at his residence or usual place of business, or by mailing it,
postage prepaid, and addressed to such stockholder at his address as it appears
in the records of the corporation. Such notice shall be given by the clerk or an
assistant clerk or by the secretary or an assistant secretary. No notice of any
meeting of stockholders need be given to a stockholder if a written waiver of
notice, executed before or after the meeting by such
stockholder or his attorney thereunto duly authorized, if filed with the records
of the meeting.
2.6 Quorum of Stockholders. At any meeting of the stockholders, a
quorum shall consist of a majority in interest of all stock issued and
outstanding and entitled to vote at the meeting; except that if two or more
classes or series of stock are entitled to vote as separate classes or series,
then in the case of each such class or series a quorum shall consist of a
majority in interest of all stock of that class or series issued and
outstanding; and except when a larger quorum is required by law, by the articles
of organization or by these by-laws. Stock owned directly or indirectly by the
corporation, if any, shall not be deemed outstanding for this purposes. Any
meeting may be adjourned from time to time by a majority of the votes properly
cast upon the question, whether or not a quorum is present, and the meeting may
be held as adjourned without further notice.
2.7 Action by Vote. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office, and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the articles of organization or by these by-laws. No
ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
2.8 Voting. Except as otherwise provided in the articles of
organization, stockholders entitled to vote shall have one vote for each share
of stock entitled to vote held by them of record according to the records of the
corporation. The corporation shall not, directly or indirectly, vote any share
of its own stock.
2.9 Matters to be considered at Annual Meeting. At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been properly brought before the annual
meeting (a) by, or at the direction of, a majority of the board of directors or
(b) by any holder of record (both as of the time notice of such proposal is
given by the stockholder as set forth below and as of the record date for the
annual meeting in question) of any shares of the corporation's capital stock
entitled to vote at such annual meeting who complies with the procedures set
forth in this Section 2.9. For a proposal to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the clerk of the corporation, and such stockholder or his
representative must be present in person at the annual meeting. To be timely, a
stockholder's notice must be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 75 days nor more
than 180 days prior to the day on which the annual meeting immediately preceding
the annual meeting at which the proposal is proposed to be acted upon was
initially convened (the "Anniversary Date"); provided, however, that if the
annual meeting in any year is scheduled to be held on a day which is more than 7
days earlier than the Anniversary Date, then notice by a stockholder to be
timely must be so delivered or received not later than the close of business on
(a) on the 20th day following the earlier of (i) the day on which such notice of
the date of the annual meeting is mailed or (ii) the day on which public
disclosure of the date of the annual meeting is made, or (b) if such date of
notice or public disclosure occurs more than 75 days prior to the scheduled date
of such meeting, then the later of (i) the 20th day following the first to occur
of such notice or such public disclosure or (ii) the
75th day prior to such scheduled date of such meeting. A stockholder's notice to
the clerk shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the proposal desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and address, as they appear on the
corporation's stock transfer books, of the stockholder proposing such business
and of the beneficial owners (if any) of the stock registered in such
stockholder's name and the name and address of other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder's
notice, (c) the class and number of shares of the corporation's capital stock
which are beneficially owned by the stockholder and such beneficial owners (if
any) on the date of such stockholder's notice and by any other stockholders
known by such stockholder to be supporting such proposal on the date of such
stockholder's notice, and (d) any financial interest of the stockholder in such
proposal.
If the board of directors, or a designated committee thereof,
determines that any stockholder proposal was not timely made in accordance with
the terms of this Section 2.9, such proposal shall not be presented for action
at the annual meeting in question. If the board of directors, or a designated
committee thereof, determines that the information provided in a stockholder's
notice does not satisfy the informational requirements of this section in any
material respect, the clerk of the corporation shall promptly notify such
stockholder of the deficiency in the notice. Such stockholder shall have an
opportunity to cure the deficiency by providing additional information to the
clerk within such period of time, not to exceed 5 days from the date such
deficiency notice is given to the stockholder, as the board of directors or such
committee shall reasonably determine. If the deficiency is not cured within such
period, or if the board of directors or such committee determines that the
additional information provided by the stockholder, together with the
information previously provided, does not satisfy the requirements of this
Section 2.9 in any material respect, then such proposal shall not be presented
for action at the annual meeting in question.
Notwithstanding the procedure set forth in the preceding paragraph, if
neither the board of directors nor such committee makes a determination as to
the validity of any stockholder proposal as set forth above, the presiding
officer of the annual meeting shall determine and declare at the annual meeting
whether the stockholder proposal was made in accordance with the terms of this
Section 2.9. If the presiding officer determines that a stockholder proposal was
made in accordance with the terms of this Section 2.9, he shall so declare at
the annual meeting. If the presiding officer determines that a stockholder
proposal was not made in accordance with the provisions of this Section 2.9, he
shall so declare at the annual meeting and such proposal shall not be acted upon
at the annual meeting.
This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the board of directors, but in connection with such reports, no
new business shall be acted upon at such annual meeting except in accordance
with the provisions of this Section 2.9.
2.10 Action by Writing. Any action to be taken by stockholders may be
taken without a meeting if all stockholders entitled to vote on the matter
consent to the action by a writing filed with the records of the meetings of
stockholders. Such consent shall be treated for all purposes as a vote at a
meeting.
2.11 Proxies. Stockholders entitled to vote may vote either in person
or by proxy. Any proxy must be in writing and must be filed with the clerk or
other person responsible to record the proceedings of the meeting before being
voted. No proxy dated more than six months before the meeting named therein
shall be valid. Unless otherwise specifically limited by their terms, such
proxies shall entitle the holders thereof to vote at the meeting named therein
and at any adjournment of such meeting, but no proxy shall be valid after the
final adjournment of such meeting. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by any one of them
unless, at or prior to exercise of the proxy, the corporation receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on behalf of a stockholder shall be deemed valid unless
challenged at or prior to its exercise and the burden of proving invalidity
shall rest on the challenger.
2.12 Postponement or Adjournment of Annual or Special Meeting. The
board of directors acting by resolution may postpone and reschedule any
previously scheduled annual or special meeting of stockholders. The presiding
officer at all annual or special meetings of stockholders shall have the power,
among other things, to adjourn such meeting at any time and from time to time,
subject to Section 2.6. The order of business and all other matters of procedure
at any meeting of the stockholders shall be determined by the presiding officer.
SECTION 3. Board of Directors
3.1 Election, Number and Qualification.
(a) During any time that the corporation is subject to Section
50A of Chapter 156B of the Massachusetts General Laws ("Section 50A"), (1) the
number of directors (which shall not be less than three or less than the number
of stockholders, if less than three) shall be determined and increased or
decreased from time to time only by vote of the board of directors and (2) the
directors, other than those who may be elected by the holders of any class or
series of preferred stock, shall be classified with respect to the term for
which they generally hold office, pursuant to the terms of Section 50A.
(b) During any time that the corporation is not subject to
Section 50A, (1) the number of directors shall be determined and increased or
decreased from time to time only by vote of the board of directors, except that
the board of directors may be enlarged by the stockholders at any meeting,
provided that the vacancies created by such an enlargement shall be filled in
accordance with Section 6 and (2) except as otherwise provided by law, by the
articles of organization or by these by-laws, directors shall hold office until
the next annual meeting of stockholders and until their successors are chosen
and qualified.
(c) No director need be a stockholder. No decrease in the
number of directors shall shorten the term of any incumbent Director.
3.2 Powers; Issuance of Stock. Except as reserved to the stockholders
by law, by the articles of organization or by these by-laws, the business of the
corporation shall be managed by the directors, who shall have and may exercise
all the powers of the corporation. In particular, and without limiting the
generality of the foregoing, the board of
directors shall have the authority to issue or reserve for issue from time to
time the whole or any part of the capital stock of the corporation which may be
authorized from time to time, to such persons or organizations, for such
consideration, whether cash, property, services or expenses, and on such terms
as the board of directors may determine, including without limitation the
granting of options, warrants, or conversion or other rights to subscribe to
said capital stock.
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: (i) any borrowing or guarantee by the
corporation exceeding $15 million; (ii) except for issuances of stock or stock
options pursuant to the corporation's incentive compensation plan or programs,
any issuance of stock (whether common or preferred, whether voting or
non-voting, whether junior or senior to the corporation's 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 January 17, 1997; (iii) any strategic alliance (other than a
construction joint venture) involving a capital commitment exceeding $5 million;
(iv) any asset sale or lease exceeding $5 million (other than equipment
dispositions in the normal course of business); (v) 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 on or before January 17, 1997 ("Rights"), or the
preferred stock of the corporation issuable upon the exercise of such Rights, or
any amendment of the Shareholder Rights Agreement by and between the corporation
and State Street Bank and Trust Company, as Rights Agent, dated as of September
23, 1988, as amended through January 17, 1997; and (vi) any termination of
(other than a termination on expiration) or amendment to the management
agreement among the corporation, Tutor-Saliba Corporation and Ronald N. Tutor;
provided, however, that for purposes of this Section 3.3(a) of the by-laws,
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) of the terms thereof. 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 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 in 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 further, 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.
3.4 Meetings. Regular meetings of the directors, including the first
meeting of the board following the annual meeting of the stockholders, may be
held without call or notice at such places and at such times as the directors
may from time to time determine, provided that notice of the first regular
meeting following any such determination shall be given to absent directors.
Special meetings of the directors may be held at any time and at any place
designated in the call of the meeting when called by the chairman of the board,
the vice chairman of the board, the president, the treasurer or by the
directors, notice thereof being given to each director by the clerk or an
assistant clerk or by the secretary or an assistant secretary or by the officer
or the directors calling the meeting. Directors may participate in meetings of
the board of directors by means of conference telephone or similar
communications equipment by means of which all directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting.
3.5 Notice. It shall be sufficient notice to a director to send notice by mail
at least forty-eight hours or by telegram at least twenty-four hours before the
meeting addressed to him at his usual or last known business or residence
address or to give notice to him in person or by telephone at least twenty-four
hours before the meeting. Notice of a meeting need not be given to any director
if a written waiver of notice, executed by him before or after the meeting, is
filed with the records of the meeting, or to any director who attends the
meeting without protesting prior thereto or at its commencement the lack of
notice to him. Neither notice of a meeting nor a waiver of a notice need specify
the purposes of the meeting.
3.6 Quorum. At any meeting of the directors a majority of the directors
then in office shall constitute a quorum. Any meeting may be adjourned from time
to time by a majority of the votes cast upon the question, whether or not a
quorum is present, and the meeting may be held as adjourned without further
notice.
3.7 Action by Vote. When a quorum is present at any meeting, a majority
of the directors present may take any action except when a larger vote is
required by law, by the articles of organization or by these by-laws.
3.8 Action by Writing. Any action required or permitted to be taken at
any meeting of the directors may be taken without a meeting if a written consent
thereto is signed by all the directors and such written consent is filed with
the records of the meetings of the directors. Such consent shall be treated for
all purposes as a vote at a meeting.
3.9 Nomination of Directors. Nominations of candidates for election as
directors of the corporation at any annual meeting of stockholders may be made
(a) by, or at the direction of, a majority of the board of directors or (b) by
any holder of record (both as of the time notice of such nomination is given by
the stockholder as set forth below and as of the record date for the annual
meeting in question) of any shares of the corporation's capital stock entitled
to vote at such meeting who complies with the procedures set forth in this
Section 3.9. Any stockholder who seeks to make such a nomination, or his
representative, must be present in person at the annual meeting. Only persons
nominated in accordance with the procedures set forth in this Section 3.9 shall
be eligible for election as directors at an annual meeting of stockholders.
Nominations, other than those made by, or at the direction of, the
board of directors, shall be made pursuant to timely notice in writing to the
clerk of the corporation as set forth in this Section 3.9. To be timely, a
stockholder's notice shall be delivered to, or mailed and received at, the
principal executive offices of the corporation not less than 75 days nor more
than 180 days prior to the Anniversary Date; provided, however, that if the
annual meeting in any year is scheduled to be held on a day which is more than 7
days earlier than the Anniversary Date then notice by a stockholder to be timely
must be so delivered or received not later than the close of business on (a) the
20th day following the earlier of (i) the day on which such notice of the date
of the annual meeting is mailed or (ii) the day on which public disclosure of
the date of the annual meeting is made, or (b) if such date of notice or public
disclosure occurs more than 75 days prior to the scheduled date of such meeting,
then the later of (i) the 20th day following the first to occur of such notice
or such public disclosure or (ii) the 75th day prior to such scheduled date of
such meeting. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director (i) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person for the past
five years and (iii) the class and number of shares of the corporation's capital
stock which are beneficially owned by such person on the date of such
stockholder notice and (b) as to the stockholder giving the notice (i) the name
and address, as they appear on the corporation's stock transfer books, of such
stockholder and of the beneficial owners (if any) of the stock registered in
such stockholder's name and the name and address of other stockholders known by
such stockholder to be supporting such nominees on the date of such
stockholder's notice and (ii) the class and number of shares of the
corporation's capital stock which are beneficially owned by such stockholder and
such beneficial owners (if any) on the date of such stockholder notice and by
any other stockholders known by such stockholder to be supporting such nominees
on the date of such stockholder notice. At the request of the board of
directors, any person nominated by, or at the direction of, the board of
directors for election as a director at an annual meeting shall furnish to the
clerk of the corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
No person shall be elected by the stockholders as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 3.9. If the board of directors, or a designated committee thereof,
determines that any stockholder nomination was not timely made in accordance
with the terms of this Section such nomination shall not be considered at the
annual meeting in question. If the board of directors, or a designated committee
thereof, determines that the information provided in a stockholder's notice does
not satisfy the informational requirements of this Section 3.9 in any material
respect, the clerk of the corporation shall promptly notify such stockholder of
the deficiency in the notice. Such stockholder shall have an opportunity to cure
the deficiency by providing additional information to the clerk within such
period of time, not to exceed 5 days from the date such deficiency notice is
given to the stockholder, as the board of directors or such committee shall
determine. If the deficiency is not cured within such period, or if the board of
directors or such committee reasonably determines that the additional
information provided by the stockholder, together with the information
previously provided, does not satisfy the requirements of this Section 3.9 in
any material respect, such nomination shall not be considered at the annual
meeting in question.
Notwithstanding the procedure set forth in the preceding paragraph, if
neither the board of directors nor such committee makes a determination as to
the validity of any nominations by a stockholder as set forth above, the
presiding officer of the annual meeting shall determine and declare at the
annual meeting whether a nomination was made in accordance with the terms of
this Section 3.9. If the presiding officer determines that a nomination was made
in accordance with the terms of this Section 3.9, he shall so declare at the
annual meeting. If the presiding officer determines that a nomination was not
made in accordance with the terms of this Section 3.9, he shall so declare at
the annual meeting and such nomination shall be disregarded.
SECTION 4. Officers and Agents
4.1 Enumeration and Qualification. The officers of the corporation
shall be a chairman of the board, a president, a treasurer, a clerk, a secretary
and such other officers, including a vice-chairman of the board and one or more
vice-presidents, as the directors from time to time may in their discretion
elect or appoint. The corporation may also have such agents as the directors
from time to time may in their discretion appoint. The president, the chairman
of the board and the vice-chairman of the board, if any, shall be elected from
the board of directors, but need not be stockholders. No other officer need be a
director or stockholder. The clerk shall be a resident of Massachusetts unless
the corporation has a resident agent appointed for the purpose of service of
process. Any two or more offices may be held in the same person. Any officer may
be required by the directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the directors
may determine.
4.2 Powers. Subject to law, to the articles of organization and to the
other provisions of these by-laws, each officer shall have, in addition to the
duties and powers
herein set forth, such duties and powers as are commonly incident to his office
and such duties and powers as the directors may from time to time designate.
4.3 Election. The chairman of the board, the president, the treasurer
and the clerk shall be elected annually by the directors at their first meeting
following the annual meeting of the stockholders. All other directors shall be
elected or appointed from time to time as the directors may in their discretion
determine.
4.4 Tenure. Except as otherwise provided by law or by the articles of
organization or by these by-laws, the chairman of the board, the president, the
treasurer and the clerk shall hold office until the first meeting of the
directors following the next annual meeting of the stockholders and until their
respective successors are chosen and qualified, and each other officer shall
hold office until the first meeting of the directors following the next annual
meeting of the stockholders unless a shorter period shall have been specified by
the terms of his election or appointment, or in each case until he sooner dies,
resigns, is removed or becomes disqualified. Each agent shall retain his
authority at the pleasure of the directors.
4.5 Chairman of the Board, Vice-Chairman of the Board and President.
The chairman of the board shall be the chief executive officer of the
corporation and shall preside at all meetings of the stockholders and of the
directors at which he is present. The vice-chairman of the board, if there be
such an officer, shall, in the absence of the chairman of the board, preside at
all meetings of the stockholders and of the directors at which he is present.
The chairman and vice-chairman shall each advise with and make his counsel
available to the other officers of the corporation and each shall have such
other duties and powers as shall be prescribed from time to time by the
directors.
The chief executive officer shall, subject to the direction of the
Executive Committee for so long as it exists and thereafter subject to the
direction of the directors, have general charge of the property and business of
the corporation and of all operations, shall employ and remove at pleasure and
fix the duties and compensation of managers, agents, salesmen, clerks, workmen
and other subordinate employees of the corporation, and shall have such other
duties and powers as shall be prescribed from time to time by the directors.
The president, subject to the direction of the Executive Committee for
so long as it exists and thereafter subject to the direction of the directors
and of the chairman of the board, shall direct and supervise the administration
of the business and affairs of the corporation and shall have such other duties
and powers as shall be prescribed from time to time by the directors.
4.6 Vice Presidents. The vice presidents shall have such duties and
powers as shall be prescribed for them respectively from time to time by the
directors or by the chief executive officer. The directors or the chief
executive officer may from time to time designate one or more vice presidents as
executive vice president, financial vice president, administrative vice
president, senior vice president, or otherwise, or may otherwise fix or indicate
the order of their rank, and, in their or his discretion, may from time to time
change or revoke any such designation. In the event of the death or disability
of the president, the vice president designated by the directors or the chief
executive officer, or in the absence of
such designation, the vice presidents in the order of their rank, shall perform
all the duties of the president, and when so acting shall have all the powers of
the president.
4.7 Treasurer and Assistant Treasurers. The treasurer shall, subject to
the direction and under the supervision of the board of directors, have general
charge of the financial concerns of the corporation and of its funds and
valuable papers, and shall have such other duties and powers as may be
prescribed from time to time by the directors or the chief executive officer.
The treasurer shall report to the directors but in the ordinary conduct of the
company's business shall be under the supervision of the chief executive officer
or such other officer as the directors from time to time may determine.
Any assistant treasurers shall have such duties and powers as shall be
prescribed from time to time by the directors, the chief executive officer or
the treasurer, and shall be responsible to and shall report to the treasurer.
4.8 Clerk and Assistant Clerk. The clerk shall keep a true record of
all proceedings of the stockholders. If no secretary is elected, the clerk shall
keep a true record of the proceedings of all meetings of the directors. In the
absence of the clerk from any meeting of stockholders (or directors, if there is
no secretary), an assistant clerk, or if there be none or he is absent, a
temporary clerk chosen at the meeting, shall record the proceedings thereof.
Unless a transfer agent has been appointed, the clerk shall keep or cause to be
kept the transfer records of the corporation, which shall contain the names and
record addresses of all stockholders and the amount of stock held by each. Any
assistant clerk shall have such duties and powers as shall be prescribed from
time to time by the directors.
4.9 Secretary and Assistant Secretaries. The secretary shall keep a
true record of the proceedings of all meetings of the directors and in his
absence from any such meeting an assistant secretary, or if there be none or he
is absent, a temporary secretary chosen at the meeting, shall record the
proceedings thereof.
Any assistant secretaries shall have such duties and powers as shall be
prescribed from time to time by the directors, the chief executive officer or
the secretary, and shall be responsible to and shall report to the secretary.
SECTION 5. Resignations and Removals
Any director or officer may resign at any time by delivering his
resignation in writing to the president, the treasurer or the clerk or to a
meeting of the directors. Such resignation shall be effective upon receipt
unless specified to be effective at some other time. A director (including
persons elected by directors to fill vacancies in the board) may be removed from
office only (a) if Section 50A is then applicable to the corporation, for cause
by the stockholders by the affirmative vote of the majority of the shares
outstanding and entitled to vote in the election of directors or with or without
cause by vote of a majority of the directors then in office or (b) if Section
50A is not then applicable to the corporation, with or without cause by vote of
the holders of a majority of the voting power of the then outstanding shares of
capital stock of the corporation entitled to vote generally in the election
of directors, voting together as a single class, or for cause by vote of a
majority of the directors then in office.
The directors may remove any officer elected by them with or without
cause by the vote of a majority of the directors then in office. A director or
officer may be removed for cause only after reasonable notice and opportunity to
be heard before the body proposing to remove him. No director or officer
resigning and (except where a right to receive compensation shall be expressly
provided in a duly authorized written agreement with the corporation) no
director or officer removed, shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise unless in the case of a resignation, the
directors, or in the case of a removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
SECTION 6. Vacancies
Any vacancy in the board of directors, including a vacancy resulting
from the enlargement of the board, may be filled (i) if Section 50A is then
applicable to the corporation, only by the directors by vote of a majority of
the directors then in office and (ii) if Section 50A is not them applicable to
the corporation, by the stockholders or, in the absence of stockholder action,
by the directors by vote of a majority of the directors then in office. Each
successor shall hold office for the unexpired term, and in the case of the
president, the treasurer and the clerk, until his successor is chosen and
qualified, or in each case until he sooner dies, resigns, is removed or becomes
disqualified. The directors shall have and may exercise all their powers not
withstanding the existence of one or more vacancies in their number.
SECTION 7. Capital Stock
7.1 Number and Par Value. The total number of shares and the par value,
if any, of each class of stock which the corporation is authorized to issue
shall be stated in the articles of organization.
7.2 Fractional Shares. The corporation may issue fractional shares and
may issue in lieu thereof scrip in registered or bearer form which shall entitle
the holder to receive a certificate for a full share upon surrender of such
scrip aggregating a full share. The terms and conditions and manner of issue of
such scrip to be fixed by the directors.
7.3 Stock Certificates. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any of the shares held by him, in such form as shall be prescribed from time
to time by the directors. Such certificate shall be signed by the president or a
vice president and by the treasurer or an assistant treasurer. Such signatures
may be facsimiles if the certificate is signed by a transfer agent or by a
registrar, other than a director, officer or employee of the corporation. In
case any officer
who has signed or whose facsimile signature has been placed on such certificate
shall have ceased to be such officer before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer at
the time of its issue. Every certificate for shares of stock which are subject
to any restriction on transfer and every certificate issued when the corporation
is authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law.
7.4 Loss of Certificates. In the case of the alleged loss or
destruction or the mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms as the directors may prescribe.
SECTION 8. Transfer of Shares of Stock
8.1 Transfer of Books. Subject to the restrictions, if any, stated or
noted on the stock certificates, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificates therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
directors of the transfer agent of the corporation may reasonably require.
8.2 Record Holder. Except as may be otherwise required by law, the
articles of organization or by these by-laws, the corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such
stock for all purposes, including the payment of dividends and the right to
receive notice and to vote with respect thereto, regardless of any transfer,
pledge or other disposition of such stock, until the shares have been
transferred on the books of the corporation in accordance with the requirements
of these by-laws.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.3 Record Date and Closing Transfer Books. The directors may fix in
advance a time, not more than sixty days before the date of any meeting of
stockholders or the date for payment of any dividend or making of any
distribution to stockholders or the last day on which the consent or dissent of
stockholders may be effectively expressed for any purpose, as the record date
for determining the stockholders having the right to notice of and to vote at
such meeting and any adjournment thereof or the right to receive such dividend
or distribution or the right to give such consent or dissent. In such case, only
stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the corporation after the
record date. Without fixing such record date, the directors may for any of such
purposes close the transfer books for all or any part of such period.
SECTION 9. Indemnification of Directors and Officers
9.1 General. Subject to the provision of this Section and any
limitations imposed by law, the corporation shall indemnify its directors and
officers against all expenses incurred by them in connection with any proceeding
in which they are involved by reason of their serving in such capacities except
that (i) no indemnification shall be provided for any director or officer with
respect to any matter as to which he shall have been adjudicated not to have
acted in good faith and in the reasonable belief that his action was in the best
interests of the corporation, or with respect to a criminal matter, that he had
reasonable cause to believe that his conduct was unlawful, and (ii) no
indemnification shall be provided for any director or officer with respect to a
proceeding by or in the right of the corporation in which he is adjudicated to
be liable to the corporation. Such indemnification may be provided to an officer
or director in connection with a proceeding in which it is alleged that he
received an improper personal benefit by reason of his position, regardless of
whether the claim involves his services in such capacity, subject to the
foregoing limitation, unless it shall have been determined that an improper
personal benefit was received by the director or officer. Except as provided in
Section 9.2, indemnification under this Section 9 shall be authorized in each
case as determined by the board of directors, which may act notwithstanding that
one or more of these members are parties to the proceeding in question or
otherwise have an interest in such indemnification.
9.2 Mandatory Indemnification. Notwithstanding any contrary provisions
of this Section, if a director or officer of the corporation has been wholly
successful on the merits in defense of any proceeding in which he was involved
by reason of his position or as a result of his serving in such capacity
(including the termination of investigative or other proceedings without a
finding of fault on the part of the director of officer), he shall be
indemnified by the corporation against all expenses incurred by him in
connection therewith.
9.3 Definitions. For purposes of this Section 9:
(a) A "director" or "officer" means any person serving in an
office filled by appointment or election by the directors or the stockholders
and also includes (i) a director or officer of the corporation serving at the
request of the corporation as a director, officer, employee, trustee, partner or
other agent of another organization, (ii) any person who formerly served as a
director or officer, and (iii) the heirs or personal representatives of such
persons;
(b) "Expenses" means all expenses (including attorneys' fees
and disbursements) actually and reasonably incurred in defense of a proceeding
or in successfully seeking indemnification under Section 9.2 hereof, and any
judgments, awards, fines, penalties and reasonable amounts paid in settlement of
a proceeding; and
(c) A "proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and any claim which could be the subject of a proceeding.
9.4 Advances. Except as limited by law, expenses incurred by a director
or officer in defending any proceeding in which he is involved by reason of
serving in such capacities may be paid by the corporation in advance of final
disposition of the proceeding upon receipt of his written undertaking to repay
such amount if it is ultimately determined that he is not eligible to be
indemnified, which undertaking shall be an unlimited general obligation but need
not be secured and may be accepted without regard to the financial ability of
such persons to make repayment; provided, that no such advance payment shall be
made if it is determined by the board of directors on the basis of the
circumstances known at the time (without further investigation) that said
director or officer will ultimately be ineligible to be indemnified under this
Section 9.
9.5 Settlement Proceedings. If a proceeding is compromised or settled
in a manner which imposes a liability or obligation upon a director or officer,
(i) no indemnification shall be provided to him with respect to a proceeding by
or in the right of the corporation unless the board of directors determines in
its discretion that indemnification is appropriate under the circumstances, and
(ii) no indemnification shall be provided to him with respect to any other type
of proceeding if it is determined by the board of directors that said director
or officer is ineligible to be indemnified under this Section 9. The
determination by the board of directors in each case shall be made on the basis
of the circumstances know to it at that time without further investigation.
9.6 Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any director, officer, employee or agent of the
corporation against any liability or cost incurred by him in any such capacity
or arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability or cost.
9.7 Employee Benefit Plans. If the corporation or any of its directors
or officers sponsors, undertakes or incurs any responsibility as a fiduciary
with respect to an employee benefit plan, then, for purposes of indemnification
of such person under this Section (i) a "director" or "officer" shall be deemed
to include any director or officer of the corporation who serves at its request
in any capacity with respect to said plan, (ii) such director or officer shall
be deemed not to have failed to have acted in good faith and in the reasonable
belief that his action has in the best interests of the corporation if he acted
in good faith and in the reasonable belief that his action was in the best
interest of the participants or beneficiaries of said plan, and (iii) "expenses"
shall be deemed to include any taxes or penalties assessed on such director or
officer with respect to said plan under applicable law.
9.8 Other Provisions. The provisions of this Section 9 shall not be
construed to limit the power of the corporation to indemnify its officers or
directors to the full extent permitted by law and enter specific agreements or
arrangements for this purpose. In addition, the corporation shall have power to
indemnify any of its agents or employees who are not directors or officers on
any terms consistent with law which it deems to be appropriate.
9.9 Amendment. The provisions of this Section 9 may be amended or
repealed by the stockholders; however, no such amendment or repeal which
adversely affects the rights
of a director of officer under this Section 9 with respect to his acts or
omissions at any time prior to such amendment or repeal, shall apply to him
without consent.
SECTION 10. Miscellaneous
10.1 Corporate Seal. The seal of the corporation shall, subject to
alteration by the directors, consist of a flat faced circular die with the words
"Massachusetts" and "Corporate Seal", together with the name of the corporation
and the year of its organization, cut or engraved thereon.
10.2 Execution of Papers. Except as the directors may generally or in
particular cases authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other
obligations made, accepted or endorsed by the corporation shall be signed by the
chief executive officer.
10.3 Voting of Securities. Unless otherwise provided by the board of
directors, the chairman of the board, president or treasurer each may waive
notice of and act on behalf of this corporation, or appoint another person or
persons to act as proxy or attorney-in-fact for this corporation with or without
discretionary power and/or power of substitution, at any meeting of stockholders
or shareholders of any other corporation or organization, any of whose
securities are held by this corporation.
10.4 Fiscal Year. Except as from time to time provided by the board of
directors, the fiscal year of the corporation shall end on the 31st day of
December.
10.5 Corporate Records. The original, or attested copies of the
articles of organization, by-laws and records of all meetings of the
incorporators and stockholders, and the stock and transfer records, which shall
contain the names of all stockholders and the record address and the amount of
stock held by each, shall be kept in Massachusetts at the principal office of
the corporation, or at any office of its transfer agent, clerk or resident
agent, and shall be open at reasonable times to the inspection of any
stockholder to the extent permitted by the articles of organization.
10.6 Control Share Acquisition. Until such time as this Section 10.6
shall be repealed or these by-Laws shall otherwise be amended to provide
otherwise, in each case in accordance with Section 11 of these by-Laws, the
provisions of Chapter 110D of the Massachusetts General Laws ("Chapter 110D")
shall not apply to "control share acquisitions" of the corporation within the
meaning of Chapter 110D.
SECTION 11. Amendments
These by-laws may be altered, amended or repealed at any annual or
special meeting of the stockholders called for the purpose by vote of the
stockholders entitled to vote on the matter of the proposed alteration,
amendment or repeal, and the sections to be affected thereby. If authorized by
the articles of organization, these by-laws may also be altered, amended or
repealed by vote of the majority of the directors then in office, except that
the directors shall not amend the by-laws in a manner which:
(a) Alters or abolishes any preferential right of stock of a
series with shares already outstanding;
(b) Creates, alters or abolishes any right in respect of
redemption of stock of a series with shares already outstanding;
(c) Creates or alters any restriction on transfer applicable
to stock of a series with shares already outstanding;
(d) Excludes or limits the right of a stockholder of a
series with shares already outstanding to vote on a matter;
(e) Alters the provisions for indemnification of directors
or affects the powers of directors or officers to contract with the corporation.
Any by-law so altered, amended or repealed by the directors may be
further altered or amended or reinstated by the stockholders in the above
manner.
334340.c2
EXHIBIT 4.8
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
One Ashburton Place, Boston, Massachusetts 02108-1512
Federal Identification No. 04-1717070
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, David B. Perini, President and Richard E. Burnham, Clerk of Perini
Corporation located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701 do
hereby certify that at a meeting of the directors of the corporation held on
January 10, 1997, the following vote establishing and designating a series of a
class of stock and determining the relative rights and preferences thereof was
duly adopted:
That pursuant to the authority vested in the Board of Directors of this
Corporation in accordance with the provisions of its Restated Articles of
Organization, as amended, a series of Preferred Stock (the "Series B Cumulative
Convertible Preferred Stock") of the Corporation be, and it hereby is, created
and that the designation and amount thereof and the voting powers, preferences
and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations and restrictions thereof are as
set forth on Exhibit A hereto.
EXHIBIT A
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 without the approval of the holders of 66-2/3% of the then
outstanding shares of Series B Cumulative Convertible Preferred Stock.
2. 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.
1
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 March 15, 1997 (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) 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 (defined below) or Semiannual Payment Period
(defined below), 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, 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
2
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 March 15,
1997, and run for three Dividend Payment Dates if the Original Issue Date is
between December 15, 1996 and March 15, 1997;
(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.
(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 Semiannual
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 such
3
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
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 in Section 8(h)).
4
(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 cash 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 permitted and 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 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.
5
(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 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. 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
6
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 24, 1996 or
as amended or adopted by the Corporation with approval of the Executive
Committee of the Corporation. Notwithstanding the preceding sentence, any
subsidiary which is wholly owned by the Corporation may repurchase, redeem,
retire or otherwise acquire shares of its stock.
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 the third
anniversary of the Original Issue Date (the "Third Anniversary")) 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 (defined below) 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 the Third Anniversary, for the
Redemption Price (defined below in Section 7(b)), 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. 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). The Hurdle
Percentage shall be 150% from and after the Third Anniversary, and to the fifth
anniversary of the Original Issue Date; 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 (defined below in
7
Section 7(b)) 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 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 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).
(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 (defined below in Section
7(b)) 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. 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 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, 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.
8
(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 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 in Section 7(b)) 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
9
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 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, pari passu, 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); (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), and (F) any termination of (other than a
termination upon expiration) or amendment to the management agreement among the
Corporation, Ronald Tutor and Tutor- Saliba Corporation; 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
10
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 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
11
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.
(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
12
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.
(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 Section 8(a), the
"conversion price" applicable per share of Common Stock shall initially be equal
to Nine Dollars and Sixty-Eight and Two-Hundred Nineteen One-Thousandths Cents
($9.68219), and shall be adjusted from time to time to the nearest
one-thousandth of a cent after the Original Issue Date in accordance with the
provisions of this Section 8.
13
(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:
(i) (1) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock exclusively in Common
14
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 most recent Closing Price prior to the
time of such issuance (and, if shares are issued, sold, or distributed pursuant
to the exercise or conversion of options, warrants, convertible securities, or
other rights, the exercise or conversion price thereof when such options,
warrants, convertible securities, or rights were granted or issued was less than
the Closing Price (defined below in Section 8(h) at the time of issuance of such
options, warrants, convertible securities, or other rights), 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
15
determination plus the number of shares of 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 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
16
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 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
17
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.
(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
18
"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, 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 rights to purchase Preferred Stock (or
other similar stock purchase rights 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
19
(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 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 senior 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,
20
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 reasonable and customary form 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
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
21
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 (other than
pursuant to the Rights Agreement or, following the redemption or expiration of
the Rights or the termination of the Rights Agreement, any new shareholder
rights agreement that is comparable in purpose and effect to the Rights
Agreement); 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;
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,
22
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).
(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;
23
(C) any cash dividends on the Common
Stock or other capital stock after September 1, 2001 that do not exceed in
aggregate more than twenty-five percent (25%) of the Corporation's consolidated
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 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
24
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 issued or
outstanding on the Original Issue Date (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 (defined below) or other rights referred to in
Section 8(c)(x), shall not be deemed to constitute an issuance of Common Stock,
options, warrants, rights, or exercisable, exchangeable or convertible
securities by the Corporation or any of its subsidiaries to which any of the
adjustment provisions described above in this Section 8 applies. There shall
also be no adjustment of the conversion price in case of the issuance of any
stock (or options, warrants, rights, or securities convertible into or
exchangeable or exercisable for stock) of 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.
25
(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 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
26
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 Twenty and Sixty-Five
Thousand Six Hundred and Forty-Eight Hundred-Thousandths (20.65648) 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 the number, rounded to
the nearest one-hundred thousandth, equal to the Liquidation Preference divided
by 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 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 Designated Directors selected by
the holders of the Series B Cumulative Convertible Preferred Stock, plus the
directors elected by such holders voting as a class under this clause,
constitute 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
27
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.
(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 are 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 or otherwise to adversely affect the
rights of the holders thereof or the holders of the Common Stock, (ii) create,
authorize or issue, or amend the terms of in a manner adversely affect the
rights of the holders the Series B Cumulative Convertible Preferred Stock, 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.
28
10. Outstanding Shares. For purposes of this Certificate of Vote, 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.
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 RESTRIC TIONS 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 24, 1996, AS AMENDED, 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."
29
(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 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. Effective as of the Original
Issue Date, 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. The holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall designate the classes of such
initial Designated Directors.
(i) In the event that any Designated Director shall
resign, be unable to serve, or be removed (a "Replaced Designated Director"),
the holders of a majority of the Series B Cumulative Convertible Preferred Stock
shall have the right to designate a replacement to serve as Designated Director
until the next meeting of shareholders at which directors of the same class as
the Replaced Designated Director are elected. Any Designated Director may be
removed from the Board, with or without cause, by the holders of a majority of
the Series B Cumulative Convertible Preferred Stock.
(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 a majority of the Series B Cumulative Convertible Preferred Stock.
30
(iii) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares (defined below) 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 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 a majority of the Series B
Cumulative Convertible Preferred Stock shall 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 removed director.
(iv) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares 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 a majority of the Series B Cumulative Convertible Preferred Stock
shall remove all but 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 removed director(s).
(v) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares 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, and their terms in office shall immediately expire, 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) The vote of the holders of Series B Cumulative
Convertible Preferred Stock referred to in this Section may be exercised at a
31
meeting of such holders or by written consent of holders with the requisite
percentage of the voting power outstanding.
(viii) Upon the reasonable request of the
Corporation, the holders of the Series B Cumulative Convertible Preferred Stock
shall certify in writing to the Corporation their holding of Conversion Shares.
(ix) For purposes of this Section:
(1) "voting power" shall mean the number of
votes each such share possesses in the election of directors; and
(2) "Conversion Shares" shall mean the
shares of Common Stock which are both (A) issuable or issued upon conversion of
the Series B Cumulative Convertible Preferred Stock pursuant to the terms of
this Certificate of Vote of Directors, and (B) held by a person who either (x)
acquired the shares of the Series B Cumulative Convertible Preferred Stock from
which the shares referred to in clause (A) of this definition were converted and
has held such Common Stock continuously thereafter, or (y) acquired the shares
referred to in clause (A) of this definition from a person referred to in clause
(B)(x) of this definition through a distribution to the partners by, or
dissolution of, a partnership.
(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, the holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall have the right to designate a
replacement Designated Executive Committee Member. Any Designated Executive
Committee Member may be removed from the Executive Committee, with or without
cause, by the holders of a majority of the Series B Cumulative Convertible
Preferred Stock.
(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 (x) the Corporation's incentive
compensation plans and programs, (y) any warrants outstanding on the Original
Issue Date, or (z) the Rights, any issuance of stock (whether common or
preferred, whether voting or non-voting, whether junior, pari passu, or senior
to the Series B Cumulative Convertible Preferred Stock) other
32
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); (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; and (F) any
termination of (other than a termination upon expiration) or amendment to the
management agreement among the Corporation, Ronald Tutor and Tutor-Saliba
Corporation; 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. 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.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 15th day of January in the year 1997.
/s/ David B. Perini, President
- -------------------
/s/ Richard E. Burnham, Clerk
- ----------------------
- -------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
33
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00 having been paid,
said certificate is hereby filed this 16th day of
January 1997.
/s/William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
Photocopy of Certificate to Be Sent
To:
Richard A. Soden, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Tel: (617) 570-1000
360149.c1
34
EXHIBIT 4.10
STOCK ASSIGNMENT AND ASSUMPTION AGREEMENT
This Stock Assignment and Assumption Agreement ("Assignment Agreement")
is entered into this 17th day of January 1997, by and among PB Capital Partners,
L.P., a Delaware limited partnership ("Assignor"), The Common Fund for
Non-Profit Organizations ("Assignee"), Richard C. Blum & Associates, L.P.
("RCBA"), and Perini Corporation ("Seller").
WHEREAS, Assignor is a party to a Stock Purchase and Sale Agreement by
and among Assignor, Seller, and RCBA, dated July 24, 1996, together with all
exhibits and schedules thereto and all amendments and modifications thereof
(collectively referred to as the "Stock Purchase Agreement"), pursuant to which
Assignor agreed to purchase 150,150 shares of newly issued Series B Cumulative
Convertible Preferred Stock, par value $1.00 per share (the "Series B Preferred
Stock"), of Seller for $30,030,000;
WHEREAS, Assignor wishes to assign to Assignee, and Assignee wishes to
accept assignment from Assignor, (i) all of Assignor's rights and obligations
under the Stock Purchase Agreement to purchase from Seller 23,300 shares of
Series B Preferred Stock of Seller (the "Assigned Shares"), and (ii) all other
rights, remedies, and obligations of Assignor under the Stock Purchase Agreement
with respect to the Assigned Shares;
WHEREAS, pursuant to an Investment Management Agreement between RCBA
and Assignee, dated July 1, 1993, RCBA is the investment manager and
attorney-in-fact for the Assignee with respect to certain investments;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each of the parties agrees as follows:
1. Assignment and Assumption.
(a) Upon the terms and subject to the conditions appearing herein, the
Assignor hereby transfers, assigns and delegates to the Assignee all of
Assignor's rights, title, interest, remedies, duties and obligations relating to
the purchase of the Assigned Shares under the Stock Purchase Agreement
(collectively, the "Assigned Rights").
(b) Upon the terms and subject to the conditions appearing herein, on
the basis of the representations, warranties and covenants of Seller in the
Stock Purchase Agreement, Assignee hereby accepts the foregoing assignment and
delegation and, in addition, expressly assumes and agrees to keep, perform and
fulfill all of the terms, covenants, conditions, duties and obligations insofar
as they relate to the Assignee's purchase of the Assigned Shares of the Series B
Preferred Stock which are required to be kept, performed and fulfilled by the
Assignor pursuant to the Stock Purchase Agreement from and after the date of
this Assignment. Assignor represents and
warrants that it has delivered to Assignee a true and complete copy of the Stock
Purchase Agreement.
(c) Assignor, Assignee and Seller hereby agree as follows:
(1) All obligations of Assignor and Assignee under the Stock
Purchase Agreement shall be several, and Assignee and Assignor shall not be
jointly obligated in any respect.
(2) All covenants, duties, obligations and liabilities of
Assignee arising under the Stock Purchase Agreement as a result of this
Agreement shall be limited to the covenants, duties, obligations and liabilities
that relate to the Assigned Shares. Without limiting the generality of the
immediately preceding sentence, neither Assignee nor Assignor shall have any
responsibility for any breach or default, or failure in performance, of the
other under the Stock Purchase Agreement.
(3) Except as hereinafter provided, wherever in the Stock
Purchase Agreement there is any reference to "Purchaser", as defined in the
Stock Purchase Agreement, that reference shall mean and refer to each of
"Purchaser" and "The Common Fund for NonProfit Organizations." Without limiting
the generality of the foregoing, (i) all obligations of Seller to Purchaser,
including, without limitation, those arising under the representations,
warranties and covenants of Seller in, or as provided for under, the Stock
Purchase Agreement, shall be to each of Assignor and Assignee, (ii) all
approvals, agreements, consents and waivers of Purchaser under the Stock
Purchase Agreement must be given by each of Assignor and Assignee, (iii) all
disclosures that Seller is required to make to Purchaser under the Stock
Purchase Agreement or applicable law and all information that Seller must
provide to Purchaser must be made and provided to Assignor and Assignee, and
(iv) the Stock Purchase Agreement may not be amended or modified without the
written consent of each of Assignor and Assignee.
(4) Assignee shall not make any representations or warranties
of Assignor under Article VI of the Stock Purchase Agreement. RCBA represents
and warrants to Seller that it has all requisite power and authority to execute,
deliver, and perform this Agreement on behalf of Assignee.
(5) Seller shall take reasonable measures to establish
procedures to deal with, and minimize the effects of, conflicts of interest of
directors and officers of Seller and shall from time to time provide Assignee
with such information with respect to such procedures and their application to
specific circumstances as Assignee may reasonably request.
(6) All notices to Assignee under the Stock Purchase Agreement
shall be given in the manner provided in Section 14.1 thereof and to Assignee as
follows:
- 2 -
If to Assignee:
The Common Fund for Non-Profit Organizations
c/o Richard C. Blum & Associates, L.P.
909 Montgomery Street
Suite 400
San Francisco, California 94133
Facsimile: 415-434-3130
(7) Assignee's obligation to purchase the Assigned Shares
shall be conditioned upon Assignor's representations and warranties in Section
3(d) hereof being true and correct as of the Closing Date.
(8) The Stock Purchase Agreement is hereby amended to
incorporate the foregoing provisions of this Section 1(c) to the extent
necessary to give effect to such provisions and to avoid any inconsistency
between such provisions and the Stock Purchase Agreement.
2. Modification. This Assignment Agreement shall not be modified,
discharged or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
3. Notices. Any notice, demand or other communication that any party
hereto may give to anyone interested hereunder shall be sufficiently given if
given in the manner provided in Section 14.1 of the Stock Purchase Agreement; to
Assignor as specified in such Section 14.1; and to Assignee as specified in
Section 1(c)(12) of this Agreement.
4. Binding Effect. Upon execution by both of the parties hereto, this
Assignment Agreement shall be binding upon and inure to the benefit of the
parties and their heirs, executors, administrators, successors and legal
representatives, 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.
5. Entire Agreement. This Assignment Agreement, together with the Stock
Purchase Agreement, the Registration Rights Agreement, the Certificate of Vote
of Directors with respect to the Series B Preferred Stock and the Shareholders'
Agreement constitute the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
6. Assignability. This Assignment Agreement is not transferable or
assignable by any party hereto.
- 3 -
7. Applicable Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof.
8. Counterparts. This Assignment Agreement may be executed through the
use of separate signature pages or in any number of counterparts, and each of
such counterparts shall, for all purposes, constitute one agreement binding on
all the parties, notwithstanding that all parties are not signatories to the
same counterpart.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
- 4 -
IN WITNESS WHEREOF, the parties hereto have entered into this
Assignment Agreement as of the date first written above.
THE COMMON FUND FOR
NON-PROFIT ORGANIZATIONS
By: Richard C. Blum & Associates, L.P.,
its attorney-in-fact
By: Richard C. Blum & Associates,
Inc., its General Partner
By: __________________
Marc Scholvinck, Chief
Financial Officer and
Managing Director
PB CAPITAL PARTNERS, L.P.
By: Richard C. Blum & Associates, L.P.,
its General Partner
By: Richard C. Blum & Associates,
Inc., its General Partner
By: __________________
Marc Scholvinck, Chief
Financial Officer and
Managing Director
PERINI CORPORATION
By: _____________________________
RICHARD C. BLUM & ASSOCIATES,
L.P.
By: Richard C. Blum & Associates, L.P.,
its General Partner
By: ______________________________
Marc Scholvinck, Chief Financial
Officer and Managing Director
358616.c1
- 5 -
EXHIBIT 4.11
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of January 17, 1997 (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"),
DAVID B. PERINI TESTAMENTARY TRUST (the "Trust"), RONALD N. TUTOR ("Tutor"), and
TUTOR-SALIBA CORPORATION ("Tutor-Saliba"). PB, D. Perini, the Foundation, 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 (the 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 as of
July 24, 1996, as amended, by and among PB, Richard C. Blum & Associates, L.P.
("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 (together with certain of its assigns) is simultaneously
purchasing such securities; 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;
- 2 -
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 for Election of Directors. 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 such
Stockholder's own right, in favor of the election to the Board of Directors of
the representative designated by PB at the next annual or special meeting of
stockholders at which directors will be elected ("Meeting"), which Director
shall serve until his successor is elected and qualified or until his earlier
resignation or removal. At any time during the term of this Agreement, the
Corporation shall cause the nomination for election to the Board of Directors of
the representatives of PB designated in accordance with the Certificate of Vote
of directors setting forth the terms of the Series B Cumulative Convertible
Preferred Stock, 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.
2. Term. This Agreement shall remain in force and effect until
immediately after the holding of the next Meeting at which the Director
designated pursuant to Section 1 is elected.
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 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.
-3-
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 Commonwealth of Massachusetts
applicable to agreements made and to be performed entirely within the
Commonwealth 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 January 17, 1997 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."
Provided, however, that each of the Trust and the Foundation shall be entitled
to withhold 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.
-4-
IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
PERINI CORPORATION PB CAPITAL PARTNERS, L.P.
By:__________________________ By: Richard C. Blum & Associates, L.P.,
Name: its General Partner
Title:
By: Richard C. Blum & Associates, Inc.,
its General Partner
By:______________________________
Name:
Title:
DAVID B. PERINI PERINI MEMORIAL FOUNDATION
_____________________________ By:________________________________
Name:
Title:
DAVID B. PERINI TESTAMENTARY RONALD N. TUTOR
TRUST
By:__________________________
Name: ___________________________________
Title:
TUTOR-SALIBA CORP.
By:__________________________
Name:
Title:
EXHIBIT A
- --------------------- ------------------------------- --------------------------
SERIES B CUMULATIVE SERIES A JUNIOR
CONVERTIBLE PREFERRED PARTICIPATING
COMMON STOCK STOCK PREFERRED STOCK
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
PB Capital 0 92,350 0
Partners, L.P.
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
David Perini 59,594 0 0
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
Perini Memorial 205,449 0 0
Foundation
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
David B. Perini 56,499 0 0
Testamentary Trust
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
Ronald N. Tutor 0 0 0
- --------------------- ---------------- --------------------- -------------------
- --------------------- ---------------- --------------------- -------------------
Tutor-Saliba 351,318 0 0
Corporation
- --------------------- ---------------- --------------------- -------------------
347648.c3
EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of January 17, 1997 among
PERINI CORPORATION, a Massachusetts corporation (together with its successors,
the "Company"), PB CAPITAL PARTNERS, L.P. ("PB") and THE UNION LABOR LIFE
INSURANCE COMPANY SEPARATE ACCOUNT P ("Account P" and, together with PB, the
"Initial Stockholders").
WHEREAS, as required by the terms and conditions of the Stock
Purchase Agreement dated as of July 24, 1996, as amended (the "Stock
Agreement"), among the Company, PB, and Richard C. Blum & Associates, L.P.
("RCBA"), the Company shall issue to PB on the Closing (as defined in the Stock
Agreement), the Series B Preferred Stock (as defined herein) which such stock is
convertible into common stock of the Company, par value $1.00 per share;
WHEREAS, PB -- with the Company's consent -- has assigned its
rights and obligations under the Stock Agreement to acquire a portion of the
Series B Preferred Stock to Account P, and Account P has accepted such
assignment;
WHEREAS, the Company has agreed with the Initial Stockholders, for
their benefit and for the benefit of the other holders of the Series B Preferred
Stock and holders of Conversion Shares (as defined in the Stock Agreement) to
provide certain rights as set forth herein;
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, the
following terms used in this Agreement shall have the meanings specified below.
"Account P" has the meaning set forth in the introductory
paragraph hereof.
"Affiliate" means, with respect to any Person, any of (i) a
director or executive officer of such Person, (ii) a spouse, parent, sibling or
descendant of such Person (or a spouse, parent, sibling or descendant of any
director or executive officer of such Person) and (iii) any other Person that,
directly or indirectly, controls, or is controlled by or is under common control
with such Person. For the purpose of this definition, "control" (including the
terms "controlling", "controlled by" and "under common control with"), as used
with respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities or
by contract or agency or otherwise.
"Business Day" means a day except a Saturday, Sunday or other day
on which commercial banks in New York City are authorized by law to close.
"Common Stock" means the common stock, par value $1.00 per share,
of the Company.
"Company" has the meaning set forth in the introductory paragraph
hereof.
"Conversion Shares" means (i) any shares of Common Stock or other
securities issued or issuable upon the conversion of any shares of Series B
Preferred Stock; (ii) the shares of Common Stock or other securities issued to
PB as a participation fee in connection with PB's purchase of a 100%
participation interest in a $10,000,000 extension of credit to the Company
pursuant to the Bridge Credit Agreement dated as of February 26, 1996 among
Perini Corporation ("Perini"), the Bridge Banks listed in the Bridge Credit
Agreement, and Morgan Guaranty Trust Company of New York, as Agent, as amended;
or (iii) any securities issued or issuable with respect to any of such shares or
other securities referred to in clause (i) or (ii) upon the conversion thereof
into other securities or by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise; provided that any of such securities shall
cease to be Conversion Shares when such securities shall have (x) been disposed
of pursuant to a Public Sale or (y) ceased to be outstanding.
"Deferral Period" has the meaning set forth in Section 2.1(d).
"Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Conversion Shares shall have ceased to be
Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
"Filing Date" has the meaning set forth in Section 2.1(a).
"Initial Stockholders" has the meaning set forth in the
introductory paragraph hereof.
"Initial Shelf Registration" has the meaning set forth in Section
2.1(a).
2
"Initiating Holders" has the meaning set forth in Section 2.1(a)
hereof.
"Managing Underwriters" means the investment banking firm or firms
that shall manage or co-manage an Underwritten Offering.
"Notice Holder" means a holder of Registrable Securities who has
given notice of intention to distribute such holder's Registrable Securities in
accordance with Section 2.1(d).
"PB" has the meaning set forth in the introductory paragraph
hereof.
"Person" means an individual, a corporation, a partnership, a
limited liability partnership, a limited liability company, an association, a
trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Public Sale" means any sale of Common Stock to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(or any successor provision then in effect) adopted under the Securities Act.
"Registrable Securities" means any Conversion Shares until the
date (if any) when (i) such Conversion Shares shall have been transferred or
exchanged and new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company or (ii) if requested to do so,
the Company would be required to deliver certificates for such Conversion Shares
not bearing a legend restricting further transfer, and, in each case, subsequent
disposition of such Conversion Shares shall not require registration or
qualification under the Securities Act or any similar state law then in force.
"Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
3
"Restricted Securities" means the Series B Preferred Stock, the
Conversion Shares and any securities obtained upon exchange for or upon
conversion or transfer of or as a distribution on Series B Preferred Stock, the
Conversion Shares or any such securities; provided that particular securities
shall cease to be Restricted Securities when such securities shall have (x) been
disposed of pursuant to a Public Sale, (y) been otherwise transferred or
exchanged and new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force or (z) ceased to be
outstanding.
"Rule 144" means Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, or any similar
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Act of 1933 shall include a reference to the comparable section,
if any, of any such similar Federal statute.
"Selling Period" has the meaning set forth in Section 2.1(d).
"Series B Preferred Stock" means the Series B Cumulative
Convertible Preferred Stock originally issued to the Initial Stockholders in
accordance with the Stock Agreement, as such stock may be transferred or
otherwise assigned, but only to the extent not theretofore converted, redeemed
or expired in accordance with their respective terms.
"Series B Securityholder" means at any time any Stockholder or any
holder of Conversion Shares.
"Shelf Registration" has the meaning set forth in Section 2.1(a).
"Special Counsel" means any law firm retained from time to time by
the holders of a majority of the Registrable Securities to be sold pursuant to a
Registration Statement or during any Selling Period, as shall be specified by
such holders to the Company; provided that at no time there shall be more than
one Special Counsel the fees and expenses of which will be paid by the Company
pursuant to Section 2.4.
4
"Stock Agreement" has the meaning set forth in the recitals.
"Subsequent Shelf Registration" has the meaning set forth in
Section 2.1(b).
"Stockholder" means a holder of Series B Preferred Stock.
"Underwritten Offering" means a registration in which Registrable
Securities are sold or to be sold to one or more underwriters for reoffering to
the public.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later than the
date (the "Filing Date") that is sixty (60) days after receipt by the Company of
a written request by the holder or holders of a majority of all outstanding
Conversion Shares and Series B Preferred Stock (such majority determined, for
purposes of this Section 2.1, based on the aggregate number of Conversion Shares
then outstanding plus the number of Conversion Shares into which any outstanding
shares of Series B Preferred Stock are then convertible) (the "Initiating
Holders"), the Company shall prepare and file with the SEC a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration") registering the
resale from time to time by the holders thereof of all of the Registrable
Securities upon and following conversion of the Series B Preferred Stock (the
"Initial Shelf Registration"). The Registration Statement for any Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such holders in the
manner or manners designated by them (including, without limitation, one or more
Underwritten Offerings). The Company shall use its reasonable efforts to cause
the Initial Shelf Registration to become effective under the Securities Act as
promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the end of the
Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use all reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within thirty days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "Subsequent Shelf
5
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use all reasonable efforts to cause the Subsequent Shelf Registration to become
effective as promptly as is practicable after such filing and to keep such
Registration Statement continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by any holder of the
Registrable Securities covered by such Registration Statement or by any Managing
Underwriter of such Registrable Securities.
(d) Each Series B Securityholder agrees that if it wishes to sell
any Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2.1(d). Each
holder of Registrable Securities agrees to give written notice to the Company at
least six Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such holder intends to begin such distribution and any information with
respect to such holder and the intended distribution of Registrable Securities
by such holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such holder;
provided that no holder may give such notice unless such notice, together with
notices given by other holders of Registrable Securities joining in such notice
or giving similar notices, covers at least 30,000 Conversion Shares. As promptly
as is practicable after the date such notice is provided, and in any event
within five Business Days after such date, the Company shall either:
(i) (A) prepare and file with the SEC a post-effective amendment
to the Shelf Registration or a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference
or any other required document, so that such Registration Statement will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and so that, as thereafter delivered to
purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; (B) provide each Notice Holder a copy of any
documents filed pursuant to Section 2.1(d)(i)(A); and (C) inform each
Notice Holder that the Company has complied with its obligations in Section
2.1(d)(i)(A) and that the Registration Statement and related Prospectus may
be used for the purpose of selling all or any of such Registrable
Securities (or that, if the Company has filed a post-effective amendment to
the Shelf Registration which has not yet been declared effective, the
Company will notify each Notice Holder to that effect, will use all
reasonable efforts to secure the effectiveness of such post-effective
amendment and will immediately so notify each Notice Holder when the
6
amendment has become effective); each Notice Holder will sell all or any or
such Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the 45-day period commencing with the date on which
the Company gives notice, pursuant to Section 2.1(d)(i)(C), that the
Registration Statement and Prospectus may be used for such purpose (such
45-day period is referred to as a "Selling Period"); each Notice Holder
agrees that it will not sell any Restricted Securities pursuant to such
Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to sell pursuant to Section 2.1(d) hereof
and receiving a further notice from the Company pursuant to Section
2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a period of time due to pending material
corporate developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a certificate
in writing, signed by its Chief Executive Officer, Chief Financial Officer
or General Counsel, to the Notice Holders, the Special Counsel and the
Managing Underwriters, if any, to the effect of the foregoing and, upon
receipt of such certificate, each such Notice Holder's Selling Period will
not commence until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2.1(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use all reasonable efforts
to ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence, upon the earlier of (x) public disclosure of such
pending material corporate development or similar material event or (y) a
determination by the Company that, in the judgment of the Company, public
disclosure of such material corporate development or similar material event
would not be prejudicial to the Company. Notwithstanding the foregoing, the
Company shall not under any circumstances be entitled to exercise its right
under this Section 2.1(d) to defer the commencement of a Selling Period
more than one time in any three-month period or two times in any
twelve-month period, and the period in which a Selling Period is suspended
shall not exceed fifteen days unless the Company shall deliver to such
Notice Holders a second certificate to the effect set forth above, which
shall have the effect of extending the period during which such Selling
Period is deferred by up to an additional fifteen days, or such shorter
period of time as is specified in such second certificate. In no event
shall the Company be permitted to extend the period during which such
Selling Period is deferred from and after the date a Notice Holder provides
notice to the Company in accordance with this Section 2.1(d) of its
intention to distribute Registrable Securities (a "Deferral Period") beyond
such 30-day period.
7
SECTION 2.2. Registration Procedures. In connection with the
Company's registration obligations under Section 2.1 hereof, the Company shall
effect such registrations to permit the sale of the Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the Initial Stockholders, the Initiating Holders, the Special Counsel
and the Managing Underwriters of such offering, if any, copies of all such
documents proposed to be filed, which documents will be subject to the review of
the Initial Stockholders, the Initiating Holders, the Special Counsel and such
Managing Underwriters, and the Company shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be incorporated or deemed
to be incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which the
holders of a majority of the Registrable Securities covered by such Registration
Statement, the Initial Stockholders, the Initiating Holders or the Special
Counsel shall reasonably object in writing within two full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2.1; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
(c) Notify the selling Series B Securityholders, the Initial Stock
holders, the Initiating Holders, the Special Counsel and the Managing
Underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus, any Prospectus supplement, a
Registration Statement or a post-effective amendment to a Registration Statement
has been filed with the SEC, and, with respect to a Registration Statement or
any post-effective amendment, when the same has
8
become effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, and of the contents of such
request, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation or threatening of any proceedings for
that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
existence of any fact or happening of any event which makes any statement of a
material fact in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
or which would require the making of any changes in the Registration Statement
or Prospectus in order that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, provided that the Company shall not
be required to disclose such fact or event if such fact or event has not been
publicly disclosed, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of any
of the Registrable Securities for sale in any jurisdiction, at the earliest
possible moment.
(e) If reasonably requested by an Initial Stockholder, the
Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or
the holders of a majority of the Registrable Securities being sold, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment to a
Registration Statement such information as the Initial Stockholders, the
Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or
such holders, in connection with any offering of Registrable Securities, agree
should be included therein as required by applicable law, and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as promptly as is practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, that the Company shall not be required to take any actions
under this Section 2.2(e) that are not, in the reasonable opinion of counsel for
the Company, in compliance with or required by applicable law.
(f) Furnish to each selling Series B Securityholder, the Special
Counsel, the Initial Stockholders, and each Managing Underwriter, if any,
without charge, at least one conformed copy of the Registration Statement or
Statements and any
9
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing by such Series B Securityholder, Special
Counsel, Initial Stockholders, or Managing Underwriter).
(g) Deliver to each selling holder of Registrable Securities, the
Special Counsel, the Initial Stockholders, and each Managing Underwriter, if
any, in connection with any offering of Registrable Securities, without charge,
as many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request; and the Company
hereby consents to the use of such Prospectus or each amendment or supplement
thereto by each of the selling holders of Registrable Securities and the
underwriters, if any, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Series B Securityholders, the
Managing Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Series B Securityholder or Managing Underwriter reasonably requests
in writing to the Company; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of a selling holder of
Registrable Securities, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the selling holder or
holders thereof or the Managing Underwriters, if any, to consummate the
disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement shall contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus shall contain any untrue statement of a
10
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, promptly prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the case
of a post-effective amendment to a Registration Statement, use all reasonable
efforts to cause it to become effective as promptly as is practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an underwritten offering, those
reasonably requested by the Managing Underwriters, if any, or the holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
holders of a majority of the Registrable Securities being sold) addressed to
each of the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and Managing Underwriters; (iii) obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to be
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to each of
the Managing Underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with Underwritten Offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the holders of a majority of the
Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if
11
any, to evidence the continued validity of the representations and warranties of
the Company and its subsidiaries made pursuant to clause (i) above and to
evidence compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the holders of Registrable Securities being sold, any
Managing Underwriter participating in any disposition of Registrable Securities,
if any, and any attorney or accountant retained by such selling holders or
underwriter, financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the executive
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, Managing
Underwriter, attorney or accountant in connection with such disposition; subject
to reasonable written assurances by each such person that such information will
only be used in connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12- month periods.
(n) Cooperate with the selling Series B Securityholders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the selling Series B Securityholders may request.
(o) Use all reasonable efforts to provide a CUSIP number for the
Registrable Securities not later than the effective date of the registration.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Company's Common Stock is then listed no later than the date the
Registration Statement is declared effective and, in connection therewith, to
the extent applicable, to make such filings under the Exchange Act (e.g., the
filing of a Registration Statement on Form 8-A) and to have such filings
declared effective thereunder.
12
(q) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(r) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such Registration
Statement.
SECTION 2.3. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by becoming a
transferee of any Registrable Securities, that no holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such holder has furnished the Company with the notice required pursuant to
Section 2.1(d) hereof (including the information required to accompany such
notice) and, promptly after the Company's request, such other information
regarding such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not misleading. Any sale of any
Registrable Securities by any holder shall constitute a representation and
warranty by such holder that the information relating to such holder and its
plan of distribution is as set forth in the Prospectus delivered by such holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
(b) The Company agrees (x) that if any holder of Registrable
Securities shall send a written notice to the Company of an intended
distribution of Registrable Securities under the Shelf Registration pursuant to
Section 2.1(d), the Company shall not to sell, make any short sale of, loan,
grant any option for the purchase of, effect any public sale or distribution of
or otherwise dispose of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the period from
first day of the applicable Selling Period until the date that is 90 days after
the date when such holder shall have made such distribution of Registrable
Securities under the Shelf Registration, as the holder or managing underwriter
(in the case of an Underwritten Offering) shall advise the Company (provided
that if the holder or managing underwriter shall fail to advise the Company of
any such date prior to the end of the applicable Selling Period, such period
shall end on the last day of the applicable Selling Period), except (i) as part
of such registration, (ii) pursuant to
13
registrations on Form S-4 or S-8 or any successor or similar forms thereto or
(iii) as otherwise permitted by the managing underwriter of such offering (if
any), and (y) to use all reasonable efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities, in each case purchased from the Company at any time
after the date of this Agreement (other than in a public offering) to agree not
to sell, make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of such
securities during such period except as part of such underwritten registration;
provided that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties regarding
such holder and such holder's intended method of distribution.
SECTION 2.4. Registration Expenses. All fees and expenses incident
to the Company's performance of or compliance with this Agreement shall be borne
by the Company whether or not any of the Registration Statements become
effective. Such fees and expenses shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(x) with respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) of compliance with federal securities or Blue
Sky laws (including, without limitation, fees and disbursements of Special
Counsel in connection with Blue Sky qualifications of the Registrable Securities
laws of such jurisdictions as the Managing Underwriters, if any, or holders of a
majority of the Registrable Securities being sold may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the Special Counsel or the holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) reasonable fees and disbursements of counsel for the
Company and the Special Counsel in connection with the Registration, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 2.2(k)(iii) hereof (including the expenses of any special audit and
"comfort" letters required by or incident to such performance) and (vi)
Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on any securities exchange on which similar securities issued by
the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of this
Section 2.4, each seller of Registrable Securities shall pay all registration
expenses to the extent the Company is prohibited by applicable Blue Sky laws
from paying for or on behalf of such seller of Registrable Securities.
SECTION 2.5. Indemnification.
14
(a) The Company agrees to indemnify and hold harmless each holder
of Registrable Securities whose Registrable Securities are covered by any
registration statement, its directors and officers and each other Person, if
any, who controls such holder within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which any such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse each such indemnified
party for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder specifically for use in the preparation thereof. In addition, the
Company shall indemnify any underwriter of such offering and each other Person,
if any, who controls any such underwriter within the meaning of the Securities
Act in substantially the same manner and to substantially the same extent as the
indemnity herein provided to each Indemnified Party. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such holder or any such director, officer, underwriter or controlling person and
shall survive the transfer of such securities by such holder.
(b) Each prospective seller of Registrable Securities hereunder
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in subdivision (a) of this Section 2.5) the Company, each director of
the Company, each officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereof, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Any such indemnity shall remain in
full force and effect, regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling person and shall
survive the transfer of such securities by such seller. The amount payable by
any prospective seller of
15
Registrable Securities with respect to the indemnification set forth in this
subsection (b) in connection with any offering of Registrable Securities will
not exceed the amount of the gain realized by such prospective seller pursuant
to such offering.
(c) Promptly after receipt by an indemnified party of notice of
the commencement of any action or proceeding involving a claim referred to in
the preceding subdivisions of this Section 2.5, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 2.5, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent that the
indemnifying party may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. No indemnified party shall
consent to entry of any judgment or enter into any settlement of any such action
the defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
(d) If the indemnification provided for in the preceding
subdivisions of this Section 2.5 is unavailable to an indemnified party in
respect of any expense, loss, claim, damage or liability referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such expense, loss, claim, damage or liability (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the holder or underwriter, as the case may be, on the other
from the distribution of the Registrable Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the holder or underwriter, as the case may be, on the other in
connection with the statements or omissions which resulted in such expense,
loss, damage or liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the holder or underwriter, as the case may be, on the other in connection
with the distribution of the Registrable Securities shall be deemed to be in the
same proportion as (i) the product of the
16
Liquidation Preference (as defined in Exhibit 1.7 of the Stock Agreement)
multiplied by the number of shares of Series B Preferred Stock into which the
Conversion Shares subject to the relevant distribution were converted, bears to
(ii) the gain realized by the selling holder or the underwriting discounts and
commissions received by the underwriter, as the case may be. The relative fault
of the Company on the one hand and of the holder or underwriter, as the case may
be, on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission to
state a material fact relates to information supplied by the Company, by the
holder or by the underwriter and parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the proviso contained in the first sentence of
subdivision (a) of this Section 2.5, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (d) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.5 had been available under the circumstances.
The Company and the holders of Registrable Securities agree that
it would not be just and equitable if contribution pursuant to this subdivision
(d) were determined by pro rata allocation (even if the holders and any
underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph and subdivision (c) of this
Section 2.5. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no holder
of Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
gain realized by such holder from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable Securities
purchased by it and distributed to the public were offered to the public
exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
17
SECTION 2.6. Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder and will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements. The Company further covenants
that it will cooperate with any holder of Registrable Securities and take such
further reasonable action as any holder of Registrable Securities may reasonably
request (including, without limitation, making such reasonable representations
as any such holder may reasonably request), all to the extent required from time
to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 and Rule 144A under the Securities Act.
(b) For so long as any shares of Registrable Securities are
restricted securities within the meaning of Rule 144(a)(3) under the Securities
Act, the Company covenants and agrees that it shall, during any period in which
it is not subject to Section 13 or 15(d) of the Exchange Act, make available to
any holder of Registrable Securities in connection with the sale of such holder
Registrable Securities and any prospective purchaser of Registrable Securities
from such, in each case upon request, the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Securities Act.
(c) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other eligibility requirements
for use of Form S-3 set forth in the instructions to Form S-3 (other than
Registration Requirement A.5).
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications
provided for hereunder shall be dated and in writing and shall be deemed to have
been given (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 3.1 and telephonic confirmation of
receipt thereof is obtained or (ii) if given by mail, prepaid overnight courier
or any other means, when received at the address specified in this Section 3.1
or when delivery at such address is refused. Such notices shall be addressed to
the appropriate party to the attention of the person who executed this Agreement
at the address or telecopy number set forth under such party's signature
18
below (or to the attention of such other person or to such other address or
telecopy number as such party shall have furnished to each other party in
accordance with this Section 3.1).
SECTION 3.2. Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
SECTION 3.3. Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.4. Specific Performance. Without limiting the rights of
each party hereto to pursue all other legal and equitable rights available to
such party for the other parties' failure to perform their obligations under
this Agreement, the parties hereto acknowledge and agree that the remedy at law
for any failure to perform their obligations hereunder would be inadequate and
that each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAW. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
3.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS
AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 3.6. WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
19
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 3.7. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 3.8. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
SECTION 3.9. Entire Agreement. This Agreement is intended by the
parties hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein. This Agreement
supersedes all prior agreement and understandings, written or oral, between the
parties with respect to such subject matter.
SECTION 3.10. Amendment and Waiver. Any provision of this
Agreement may be amended if, but only if, such amendment is in writing and is
signed by the Company and Series B Securityholders owning, or having Series B
Preferred Stock convertible into, at least a majority of shares of Common Stock
either issued or issuable upon the conversion of all outstanding shares of
Series B Preferred Stock, provided that no such amendment may adversely affect
the rights of any Series B Securityholder unless signed by such Series B
Securityholder. Any provision may be waived if, but only if, such waiver is in
writing and is signed by the party or parties waiving such provision and for
whose benefit such provision is intended.
SECTION 3.11. No Third Party Beneficiaries. Nothing in this
Agreement shall convey any rights upon any person or entity which is not a party
or an assignee of a party to this Agreement.
SECTION 3.12. Effectiveness. This Agreement shall become effective
immediately at such time when (i) the Agent shall have received duly executed
counterparts hereof signed by the Company and each of the Banks (or, in the case
of any party as to which an executed counterpart thereof shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party) and (ii) the Effective Date under the Stock Agreement
shall occur.
20
SECTION 3.13. No Inconsistent Agreements. The Company has not
entered into and will not enter into any registration rights agreement or
similar arrangements the performance by the Company of the terms of which would
in any manner conflict with, restrict or be inconsistent with the performance by
the Company of its obligations under this Agreement.
21
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
PERINI CORPORATION
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
Address for Notices:
73 Mount Wayte Avenue
Framingham, MA 01701
Facsimile number: (508) 628-2960
PB CAPITAL PARTNERS, L.P.
By: Richard C. Blum & Associates, L.P., its
General Partner
By: Richard C. Blum & Associates, Inc.,
its General Partner
By: ________________________
Name:
Title:
Address for Notices:
909 Montgomery Street
Suite 400
San Francisco, California 94133
Attn: Alexander Dean
Facsimile Number: 415-434-3130
22
UNION LABOR LIFE INSURANCE COMPANY
SEPARATE ACCOUNT P
By: ____________________________________
Name:
Title:
Address for Notices:
111 Massachusetts Avenue, N.W.
Washington, D.C. 20001
Attn: Michael P. Steed
Facsimile Number: 202-682-7970
347652.c2
23
EXHIBIT 10.16
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as
of January 17, 1997 by and among Perini Corporation, a Massachusetts corporation
("Perini"), Tutor-Saliba Corporation, a California corporation ("Tutor-Saliba")
and Ronald N. Tutor ("Tutor"), an individual and President of Tutor-Saliba.
WHEREAS, Perini has had some difficulty meeting its cash requirements
for the past year due to, inter alia, its high level of capital-intensive civil
construction work and the cash support required by its real estate assets;
WHEREAS, Perini's financial condition has impeded its ability to
perform on existing projects and to bid on new projects;
WHEREAS, during the course of 1996, Perini engaged in an extensive
search for new capital to support its cash needs and to provide it the
opportunity to improve operations and improve its competitiveness in the general
contracting and construction industry;
WHEREAS, as a result of its search for capital, Perini entered into a
Stock Purchase and Sale Agreement dated July 24, 1996 by and among Perini, PB
Capital Partners, L.P., a Delaware limited partnership ("PB Capital Partners"),
and Richard C. Blum & Associates, L.P., a California limited partnership
("RCBA") (as amended through the date hereof, the "Stock Purchase Agreement"),
pursuant to which it is contemplated that Perini will issue convertible
preferred stock to PB Capital Partners in exchange for an investment by PB
Capital Partners of $30,030,000 (the "Investment");
WHEREAS, Tutor-Saliba is a limited partner of PB Capital Partners;
WHEREAS, Tutor-Saliba directly owns approximately 7.24% of the
outstanding common stock, par value $1.00 per share (the "Common Stock") of
Perini;
WHEREAS, Tutor-Saliba has from time to time engaged in construction
joint ventures with Perini under the name Tutor-Saliba/Perini;
WHEREAS, considering the existing and potential relationships, direct
and indirect, between Tutor-Saliba and Perini, as well as Tutor's expertise and
achievements in the construction industry, the parties hereto desire, in
connection with and contingent upon the Investment, that Tutor-Saliba provide
the services of Tutor to Perini, for the purpose of providing direction to
Perini with respect to its ongoing and future construction operations and
improving Perini's operating efficiency and thus its ability to successfully
compete for new projects and in new areas;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereby agree as follows:
1. Effectiveness. Unless sooner terminated pursuant to Section 6
hereof, this Agreement shall become effective on the date of the closing of the
Investment (the "Effective Date").
2. Management.
(a) Tutor-Saliba and Tutor each hereby agree to provide to
Perini the management services of Tutor, to assist Perini from time to time (but
for no more than ten (10) days in any calendar month, unless the parties
otherwise agree in writing) as described in Section 2(b) hereof or as the
parties hereto may otherwise agree.
(b) Tutor shall initially serve as acting Chief Operating
Officer of Perini, and will provide direction with respect to Perini's ongoing
and future construction operations, with the goal of achieving greater operating
efficiencies, reducing Perini's need for working capital, reducing Perini's
exposure to risk by negotiating and bidding on construction projects that will
yield higher profit margins than current projects, negotiating with Perini's
lenders, bonding companies and insurers, and generally improving Perini's cash
flow situation and competitive position in the general contracting and
construction industry.
(c) Perini hereby agrees to take all action which may be
required to: (i) appoint Tutor acting Chief Operating Officer of Perini; (ii)
provide Tutor with the use of an office at Perini's principal executive offices
and administrative and other support services as may be reasonably necessary in
connection with the performance of Tutor's services under Section 2(b) hereof;
(iii) make available to Tutor the services of such of its employees and
consultants as may be reasonably necessary to the performance of the services
described in Section 2(b) above; and (iv) issue the Option (as defined below)
and otherwise pay the management fee pursuant to Section 3 hereof.
3. Compensation. In return for the provision of Tutor's services,
Perini shall pay a management fee as follows:
(a) On the Effective Date, Perini shall issue to Tutor,
pursuant to Perini's 1982 Stock Option and Long-Term Performance Incentive
Compensation Plan, as amended (the "Plan") (or, in the event options are
unavailable for issuance under such plan, with similar terms and conditions as
under the Plan), an option (the "Option") exercisable for 150,000 shares of
Common Stock, with an exercise price per share equal to the closing price of the
Common Stock on the American Stock Exchange on the day prior to the Effective
Date. The Option will first become exercisable forty months after the Effective
Date.
(b) Beginning on the Effective Date, Perini shall pay a fee to
Tutor-Saliba at the rate of $150,000 per year, such amount to be paid in twelve
equal monthly installments in arrears on the 15th of each month, or as the
parties hereto shall otherwise agree in writing.
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4. Limitation of Liability.
(a) Neither Tutor nor Tutor-Saliba makes any express or
implied representation, warranty or guaranty to Perini relating to the services
to be performed by Tutor pursuant to this Agreement or the quality or results of
such services.
(b) Neither Tutor nor Tutor-Saliba shall be liable to Perini
or to any of its subsidiaries or affiliates or to any third party for failure to
perform the services to be performed by either of them pursuant to this
Agreement for any expense, claim, loss or damage, including, without limitation,
indirect, special, consequential or exemplary damages, suffered other than by
reason of such party's intentional failure to perform the services to be
performed by such party pursuant to this Agreement, or by reason of action taken
or omitted to be taken by such party which was in bad faith and in a manner not
reasonably believed by such party to be in the best interests of Perini.
5. Indemnification. Perini shall indemnify and hold Tutor and
Tutor-Saliba harmless against all loss, cost, liability and expense arising out
of the performance of this Agreement by Tutor and Tutor-Saliba, upon the same
terms and conditions as those provided to officers and directors of Perini by
Section 9 of the By-laws of Perini. A true, complete and correct copy of Section
9 of the By-laws of Perini is attached hereto as Exhibit A.
6. Termination. Unless earlier terminated by the parties, this
Agreement shall terminate upon the earliest to occur of (i) December 31, 1998,
(ii) Tutor's inability to perform the services contemplated hereby, whether
because of death, disability or otherwise, (iii) written notice from Perini to
Tutor after, in the determination of a majority of the Executive Committee of
the Board of Directors of Perini, Tutor has failed to perform his obligations
under this Agreement, and (iv) the reasonable determination by the Board of
Directors or Executive Committee of Perini, and written notice thereof to Tutor,
that it would be inadvisable for Tutor to continue performing the services
contemplated by this Agreement.
7. Governing Law. This Agreement shall be construed under and governed
by the internal laws of the Commonwealth of Massachusetts without regard to its
conflict of laws provisions.
8. Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered or sent by facsimile transmission, upon receipt, or if sent
by registered or certified mail, upon the sooner of the date on which receipt is
acknowledged or the expiration of three days after deposit in United States post
office facilities properly addressed with postage prepaid. All notices to a
party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
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TO TUTOR-SALIBA
OR TUTOR: Tutor-Saliba Corporation
c/o Ronald N. Tutor
15901 Olden Street
Sylmar, CA 91342
TO PERINI: Perini Corporation
73 Mt. Wayte Avenue
Framingham, MA 01701-9160
Attn: Mr. David B. Perini
With a copy to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Fax (617) 523-1231
Attn: Richard A. Soden, Esq.
Any notice given hereunder may be given on behalf of any party by such party's
counsel or other authorized representative.
9. Entire Agreement. This Agreement, including the exhibit referred to
herein, is complete, reflects the entire agreement of the parties with respect
to its subject matter, and supersedes all previous written or oral negotiations,
commitments and writings. No promises, representations, understandings,
warranties and agreements have been made by any of the parties hereto except as
referred to herein; and all inducements to the making of this Agreement relied
upon by either party hereto have been expressed herein.
10. Assignability; Binding Effect. This Agreement shall not be
assignable by any of the parties hereto without the written consent of the other
parties. This Agreement shall be binding upon and enforceable by, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
11. Execution in Counterparts. For the convenience of the parties and
to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
12. Amendments. This Agreement may not be amended or modified, nor may
compliance with any covenant set forth herein be waived, except by a writing
duly and validly executed by each party hereto, or in the case of a waiver, the
party waiving compliance.
13. Confidentiality. Tutor-Saliba and Tutor each hereby agree (i) to
keep confidential and not use in any manner adverse to Perini or any of its
subsidiaries or affiliates any confidential information about Perini, any of its
subsidiaries or any of its affiliates,
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including without limitation financial information, trade secrets, bidding
processes and other information with respect to actual or prospective bids made
or being considered to be made by any of them and (ii) to indemnify and hold
harmless Perini, its subsidiaries and its affiliates for any and all loss, cost,
liability and expense arising out of a breach of this provision.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above by their duly authorized
representatives.
PERINI CORPORATION
By:
Title:
TUTOR-SALIBA CORPORATION
By:
Title:
RONALD N. TUTOR
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EXHIBIT A
SECTION 9. Indemnification of Directors and Officers
9.1 General. Subject to the provision of this Section and any
limitations imposed by law, the corporation shall indemnify its directors and
officers against all expenses incurred by them in connection with any proceeding
in which they are involved by reason of their serving in such capacities except
that (i) no indemnification shall be provided for any director or officer with
respect to any matter as to which he shall have been adjudicated not to have
acted in good faith and in the reasonable belief that his action was in the best
interests of the corporation, or with respect to a criminal matter, that he had
reasonable cause to believe that his conduct was unlawful, and (ii) no
indemnification shall be provided for any director or officer with respect to a
proceeding by or in the right of the corporation in which he is adjudicated to
be liable to the corporation. Such indemnification may be provided to an officer
or director in connection with a proceeding in which it is alleged that he
received an improper personal benefit by reason of his position, regardless of
whether the claim involves his services in such capacity, subject to the
foregoing limitation, unless it shall have been determined that an improper
personal benefit was received by the director or officer. Except as provided in
Section 9.2, indemnification under this Section 9 shall be authorized in each
case as determined by the board of directors, which may act notwithstanding that
one or more of these members are parties to the proceeding in question or
otherwise have an interest in such indemnification.
9.2 Mandatory Indemnification. Notwithstanding any contrary provisions
of this Section, if a director or officer of the corporation has been wholly
successful on the merits in defense of any proceeding in which he was involved
by reason of his position or as a result of his serving in such capacity
(including the termination of investigative or other proceedings without a
finding of fault on the part of the director of officer), he shall be
indemnified by the corporation against all expenses incurred by him in
connection therewith.
9.3 Definitions. For purposes of this Section 9:
(a) A "director" or "officer" means any person serving in an
office filled by appointment or election by the directors or the stockholders
and also includes (i) a director or officer of the corporation serving at the
request of the corporation as a director, officer, employee, trustee, partner or
other agent of another organization, (ii) any person who formerly served as a
director or officer, and (iii) the heirs or personal representatives of such
persons;
(b) "Expenses" means all expenses (including attorneys' fees
and disbursements) actually and reasonably incurred in defense of a proceeding
or in successfully seeking indemnification under Section 9.2 hereof, and any
judgments, awards, fines, penalties and reasonable amounts paid in settlement of
a proceeding; and
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(c) A "proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and any claim which could be the subject of a proceeding.
9.4 Advances. Except as limited by law, expenses incurred by a director
or officer in defending any proceeding in which he is involved by reason of
serving in such capacities may be paid by the corporation in advance of final
disposition of the proceeding upon receipt of his written undertaking to repay
such amount if it is ultimately determined that he is not eligible to be
indemnified, which undertaking shall be an unlimited general obligation but need
not be secured and may be accepted without regard to the financial ability of
such persons to make repayment; provided, that no such advance payment shall be
made if it is determined by the board of directors on the basis of the
circumstances known at the time (without further investigation) that said
director or officer will ultimately be ineligible to be indemnified under this
Section 9.
9.5 Settlement Proceedings. If a proceeding is compromised or settled
in a manner which imposes a liability or obligation upon a director or officer,
(i) no indemnification shall be provided to him with respect to a proceeding by
or in the right of the corporation unless the board of directors determines in
its discretion that indemnification is appropriate under the circumstances, and
(ii) no indemnification shall be provided to him with respect to any other type
of proceeding if it is determined by the board of directors that said director
or officer is ineligible to be indemnified under this Section 9. The
determination by the board of directors in each case shall be made on the basis
of the circumstances know to it at that time without further investigation.
9.6 Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any director, officer, employee or agent of the
corporation against any liability or cost incurred by him in any such capacity
or arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability or cost.
9.7 Employee Benefit Plans. If the corporation or any of its directors
or officers sponsors, undertakes or incurs any responsibility as a fiduciary
with respect to an employee benefit plan, then, for purposes of indemnification
of such person under this Section (i) a "director" or "officer" shall be deemed
to include any director or officer of the corporation who serves at its request
in any capacity with respect to said plan, (ii) such director or officer shall
be deemed not to have failed to have acted in good faith and in the reasonable
belief that his action has in the best interests of the corporation if he acted
in good faith and in the reasonable belief that his action was in the best
interest of the participants or beneficiaries of said plan, and (iii) "expenses"
shall be deemed to include any taxes or penalties assessed on such director or
officer with respect to said plan under applicable law.
9.8 Other Provisions. The provisions of this Section 9 shall not be
construed to limit the power of the corporation to indemnify its officers or
directors to the full extent permitted by law and enter specific agreements or
arrangements for this purpose. In addition, the corporation shall have power to
indemnify any of its agents or employees who
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are not directors or officers on any terms consistent with law which it deems to
be appropriate.
9.9 Amendment. The provisions of this Section 9 may be amended or
repealed by the stockholders; however, no such amendment or repeal which
adversely affects the rights of a director of officer under this Section 9 with
respect to his acts or omissions at any time prior to such amendment or repeal,
shall apply to him without consent.
326593.c5
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