UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
PERINI CORPORATION
------------------
(Name of Issuer)
Common Stock and
Series B Cumulative Convertible Preferred Stock
-----------------------------------------------
(Title of Class of Securities)
713-839108
----------
(CUSIP Number)
Murray A. Indick
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, CA 94133
(415) 434-1111
------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 29, 2000
-----------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 11
CUSIP NO. 713-839108 SCHEDULE 13D Page 2 of 11
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON PB CAPITAL PARTNERS, L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-3248865
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]**
(b) [x]**
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* WC
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,823,394**
BENEFICIALLY
OWNED BY EACH
PERSON WITH
-----------------------------------------------------------
9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,823,394**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,823,394**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.79%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON PN
- ------------------------------------------------------------------------------
** See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 713-839108 SCHEDULE 13D Page 3 of 11
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON BLUM CAPITAL PARTNERS, L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-3205364
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]**
(b) [x]**
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* Not Applicable
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION California
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,823,394**
BENEFICIALLY
OWNED BY EACH
PERSON WITH
-----------------------------------------------------------
9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,823,394**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,823,394**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.79%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON PN, IA
- ------------------------------------------------------------------------------
** See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 713-839108 SCHEDULE 13D Page 4 of 11
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON RICHARD C. BLUM & ASSOCIATES, INC.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 94-2967812
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]**
(b) [x]**
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* Not Applicable
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION California
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,823,394**
BENEFICIALLY
OWNED BY EACH
PERSON WITH
-----------------------------------------------------------
9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,823,394**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,823,394**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.79%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- ------------------------------------------------------------------------------
** See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 713-839108 SCHEDULE 13D Page 5 of 11
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON RICHARD C. BLUM
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]**
(b) [x]**
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* Not Applicable
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A.
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,823,394**
BENEFICIALLY
OWNED BY EACH
PERSON WITH
-----------------------------------------------------------
9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,823,394**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,823,394**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.79%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON IN
- ------------------------------------------------------------------------------
** See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 713-839108 SCHEDULE 13D Page 6 of 11
- ------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON THE COMMON FUND FOR NONPROFIT ORGANIZATIONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 23-7037968
- ------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]**
- ------------------------------------------------------------------------------
3. SEC USE ONLY
- ------------------------------------------------------------------------------
4. SOURCE OF FUNDS* WC
- ------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- ------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION New York
- ------------------------------------------------------------------------------
7. SOLE VOTING POWER -0-
NUMBER OF -----------------------------------------------------------
SHARES 8. SHARED VOTING POWER 5,823,394**
BENEFICIALLY
OWNED BY EACH
PERSON WITH
-----------------------------------------------------------
9. SOLE DISPOSITIVE POWER -0-
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 5,823,394**
- ------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,823,394**
- ------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
- ------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.79%**
- ------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON CO
- ------------------------------------------------------------------------------
** See Item 5
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 713-839108 SCHEDULE 13D Page 7 of 11
This Amendment No. 6 amends the Statement on Schedule 13D (the "Schedule 13D")
filed with the Securities and Exchange Commission (the "Commission") February
14, 2000 by PB Capital Partners, L.P., a Delaware limited partnership ("PB
Capital"), BLUM Capital Partners, L.P. (formerly Richard C. Blum & Associates,
L.P.), a California limited partnership ("BLUM LP"); Richard C. Blum &
Associates, Inc., a California corporation ("RCBA Inc."); Richard C. Blum, the
Chairman and a substantial shareholder of RCBA Inc.; and The Common Fund for
Nonprofit Organizations, a New York nonprofit corporation ("The Common Fund")
(collectively, the "Reporting Persons"). This Amendment No. 6 relates to the
Series B Cumulative Convertible Preferred Stock (the "Series B Shares") of the
Perini Corporation (the "Issuer") and the common stock of the Issuer into
which such stock is convertible. The principal executive office and mailing
address of the Issuer is 73 Mt. Wayne Avenue, Framingham, Massachusetts 01701.
The following amendments to the Schedule 13D are hereby made. Unless otherwise
defined herein, all capitalized terms shall have the meanings ascribed to them
in the Schedule 13D.
Item 4. Purpose of Transaction
- -------------------------------
Item 4 of the Schedule 13D is hereby amended as follows:
In connection with the closing of a Securities Purchase Agreement (the "SPA")
dated as of March 29, 2000 by and among Issuer, Tutor-Saliba Corporation, a
California corporation, O&G Industries, Inc., a Connecticut corporation, and
National Union Fire Insurance Company of Pittsburgh, PA, a Pennsylvania
corporation (collectively, the "Purchasers"), the Reporting Persons have
entered into (i) an Exchange Agreement dated as of February 14, 2000 by and
between Issuer and PB Capital, and (ii) an Exchange Agreement dated as of
February 14, 2000 by and between Issuer and The Common Fund (collectively, the
"Agreements") (attached as Exhibits B and C, to the 13D Amendment No. 5 filed
on February 23, 2000 by BLUM Capital Partners, L.P. respectively, and
incorporated by reference herein).
On March 29, 2000, PB Capital and The Common Fund exchanged all of their Series
B Shares for an aggregate of 4,606,994 and 1,162,348, respectively, of newly
issued Common Stock, par value $1.00. PB Capital and The Common Fund entered
into (i) a Shareholders' Agreement dated March 29, 2000, and (ii) a
Registration Rights Agreement dated March 29, 2000 with the Issuer, the
Purchasers and certain other parties (the "Second Agreements").
Except to the extent the foregoing may be deemed a plan or proposal, none of
the Reporting Persons has any plans or proposals which relate to, or could
result in, any of the matters referred to in paragraphs (a) through (j),
inclusive, of the instructions to Item 4 of Schedule 13D. The Reporting
Persons may, at any time and from time to time, review or reconsider their
position and/or change their purpose and/or formulate plans or proposals with
respect thereto.
CUSIP NO. 713-839108 SCHEDULE 13D Page 8 of 11
Item 5. Interest in Securities of the Issuer
- ---------------------------------------------
Item 5 of the Schedule 13D is hereby amended as follows:
(a),(b) According to information provided by Issuer, there were 22,584,469
shares of the Common Stock issued and outstanding as of March 29, 2000 after
giving effect to the consummation of the transactions pursuant to the SPA and
the Second Agreements.
Based on the information supplied by the Issuer, the Reporting Persons report
the following holdings of the Common Stock:
Name No. Owned Percentage
------------- -------------
PB Capital 4,656,792(1) 20.62%
The Common Fund 1,162,348 5.15%
BLUM, L.P. 5,823,394 (2) 25.79%
RCBA Inc. 5,823,394 (2) 25.79%
Richard C. Blum 5,823,394 (2) 25.79%
Note (1) Includes 49,801 shares of common stock of Issuer owned by the United
Brotherhood of Carpenters Pension Fund ("UBC"), which is a limited partner of
PB Capital.
Note (2) Includes shares of Common Stock of Issuer as follows: the shares
shown above attributable to PB Capital; the 1,162,348 shares owned by The
Common Fund; and 4,254 shares owned by BLUM LP.
Richard C. Blum is a significant stockholder and chairman of RCBA Inc., the
general partner of BLUM LP, which is the general partner of PB Capital with
voting and investment power concerning PB Capital's shares, and the investment
advisor to The Common Fund with voting and investment power over The Common
Fund's shares. BLUM LP, RCBA Inc. and Mr. Blum disclaim beneficial ownership
of such shares except to the extent of any pecuniary interest therein. The
Common Fund disclaims membership in a group with any of the Reporting Persons,
and disclaims beneficial ownership of any shares held by the Reporting
Persons.
(c) The Reporting Persons have engaged in no transaction involving shares of
the Common Stock since the Schedule 13D was filed other than those
transactions described in this Amendment No. 6 to the Schedule 13D.
(d), (e) No change.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
- ------------------------------------------------------------------------------
Item 6 of the Schedule 13D is hereby amended as follows:
CUSIP NO. 713-839108 SCHEDULE 13D Page 9 of 11
None of the Reporting Persons or, to the best knowledge of the Reporting
Persons, the other persons named in Item 2, is a party to any contract,
arrangement, understanding or relationship with respect to any securities of
the Issuer, including but not limited to the transfer or voting of any
securities of the Issuer, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies, except (i) as previously
disclosed; (ii) as noted in the Schedule 13D, BLUM LP has voting and investment
power of the shares held by it for the benefit of the Common Fund; and (iii) as
described in Item 4 above, the Reporting Persons entered into Exchange
Agreements with Issuer whereby the Series B Shares held directly by PB Capital
and the Common Fund have been exchanged for newly issued shares of Issuer
Common Stock.
Item 7. Material to Be Filed as Exhibits
- --------------------------------------------
Exhibit A Joint Filing Undertaking
Exhibit B Registration Rights Agreement dated as of March 29, 2000 by and
among Perini Corporation, Tutor-Saliba Corporation, Ronald N.
Tutor, National Union Fire Insurance Company of Pittsburgh, PA,
and O&G Industries, Inc., BLUM Capital Partners, L.P., PB Capital
Partners, L.P., The Common Fund for Non-Profit Organizations, The
Union Labor Life Insurance Company.
Exhibit C Shareholders' Agreement dated as of March 29, 2000 by and
between Tutor-Saliba Corporation, Ronald N. Tutor, O&G Industries,
Inc., National Union Fire Insurance Company of Pittsburgh, PA,
BLUM Capital Partners, L.P., PB Capital Partners, L.P., The Common
Fund for Non-Profit Organizations , The Union Labor Life Insurance
Company and Perini Corporation
CUSIP NO. 713-839108 SCHEDULE 13D Page 10 of 11
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
April 7, 2000
RICHARD C. BLUM & ASSOCIATES, INC. BLUM CAPITAL PARTNERS, L.P.
By Richard C. Blum & Associates, Inc.
its general partner
By /s/ Murray A. Indick By /s/ Murray A Indick
------------------------------- -----------------------------------
Murray A Indick Murray A Indick
Partner and General Counsel Partner and General Counsel
/s/ Murray A Indick
PB CAPITAL PARTNERS, L.P. -------------------------------------
By BLUM Capital Partners, L.P., RICHARD C. BLUM
its general partner
By Richard C. Blum & Associates, Inc., By Murray A Indick
its general partner Attorney-in-Fact
By /s/ Murray A Indick
-------------------------------
Murray A Indick
Partner and General Counsel
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS
By BLUM Capital Partners, L.P.,
its investment advisor
By Richard C. Blum & Associates, Inc.
its general partner
By /s/ Murray A Indick
-------------------------------
Murray A Indick
Partner and General Counsel
CUSIP NO. 713-839108 SCHEDULE 13D Page 11 of 11
Exhibit A
Joint Filing Undertaking
The undersigned, being duly authorized thereunto, hereby execute this
agreement as an exhibit to the Schedule 13D to evidence the agreement of the
below-named parties, in accordance with the rules promulgated pursuant to the
Securities Exchange Act of 1934, to file this Schedule jointly on behalf of
each such party.
April 7, 2000
RICHARD C. BLUM & ASSOCIATES, INC. BLUM CAPITAL PARTNERS, L.P.
By Richard C. Blum & Associates, Inc.
its general partner
By /s/ Murray A. Indick By /s/ Murray A Indick
------------------------------- -----------------------------------
Murray A Indick Murray A Indick
Partner and General Counsel Partner and General Counsel
/s/ Murray A Indick
PB CAPITAL PARTNERS, L.P. -------------------------------------
By BLUM Capital Partners, L.P., RICHARD C. BLUM
its general partner
By Richard C. Blum & Associates, Inc., By Murray A Indick
its general partner Attorney-in-Fact
By /s/ Murray A Indick
-------------------------------
Murray A Indick
Partner and General Counsel
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS
By BLUM Capital Partners, L.P.,
its investment advisor
By Richard C. Blum & Associates, Inc.
its general partner
By /s/ Murray A Indick
-------------------------------
Murray A Indick
Partner and General Counsel
Exhibit B
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 29, 2000 by and
among Perini Corporation, a Massachusetts corporation (together with its
successors, the "Company"), Tutor-Saliba Corporation, a California
corporation ("TSC"), Ronald N. Tutor ("RNT"), National Union Fire Insurance
Company of Pittsburgh, PA, a Pennsylvania corporation ("National Union"),
and O&G Industries, Inc., a Connecticut corporation (("O&G"), BLUM Capital
Partners, L.P., a California limited partnership ("BLUM"), PB Capital
Partners, L.P., a Delaware limited partnership ("PB Capital"), The Common
Fund for Non-Profit Organizations, a New York non-profit corporation ("The
Common Fund"), and The Union Labor Life Insurance Company, a Maryland
corporation acting on behalf of its Separate Account P ("ULLICO" and
collectively with TSC, RNT, AIG, O&G, BLUM and PB Capital the
"Shareholders").
WHEREAS, pursuant to the terms and conditions of the Securities
Purchase Agreement dated as of February 14, 2000 (the "Securities Purchase
Agreement"), among the Company and the Shareholders, TSC, National Union
and O&G shall acquire shares of common stock, par value $1.00 per share, of
the Company on the Closing (as defined in the Securities Purchase
Agreement), in the amounts set forth opposite each name on Exhibit 2.01
thereto;
WHEREAS, pursuant to the terms of certain exchange agreements dated as
of February 14, 2000, between the Company and certain holders of the Company's
Series B Preferred Stock, such holders have agreed to exchange their Series B
Preferred Stock for Common Stock of the Company; and
WHEREAS, the Company has agreed with the Shareholders to provide
certain rights as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, the
following terms used in this Agreement shall have the meanings specified
below.
a) "BLUM" has the meaning set forth in the introductory paragraph
hereof.
(b) "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are required or
authorized by law to close.
(c) "The Common Fund" has the meaning set forth in the
introductory paragraph hereof.
(d) "Common Stock" means the common stock, par value $1.00 per
share, of the Company.
(e) "Company" has the meaning set forth in the introductory
paragraph hereof.
(f) "Deferral Period" means the period during which the Company
has elected to postpone the sale or other transfer of Registrable
Securities by the holders thereof pursuant to the applicable terms of
Article 2 of this Agreement or any other period during which a stop order
or other order suspending the effectiveness of a Registration Statement is
in effect.
(g) "Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Shares shall have ceased to be
Registrable Securities.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934
shall include a reference to the comparable section, if any, of any such
successor Federal statute.
(i) "Managing Underwriters" means the investment banking firm or
firms that shall manage or co-manage an Underwritten Offering.
(j) "National Union" has the meaning set forth in the introductory
paragraph hereof.
(k) "Notice Holder" means a holder of Registrable Securities who
has given notice of the intention to distribute such holder's Registrable
Securities in accordance with Section 2.1(d), 2.2 or 2.3, as the case may
be.
(l) "O&G" has the meaning set forth in the introductory paragraph
hereof.
(m) "PB Capital" has the meaning set forth in the introductory
paragraph hereof.
(n) "Person" means an individual, a corporation, a partnership, a
limited liability partnership, a limited liability company, an association,
a trust or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
(o) "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective Registration Statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
(p) "Public Sale" means any sale of Shares to the public pursuant
to an offering registered under the Securities Act or to the public through
a broker, dealer or market maker pursuant to the provisions of Rule 144 (or
any successor provision then in effect) adopted under the Securities Act.
(q) "Registrable Securities" means Shares until the date (if any)
when (i) such Shares shall have been sold or transferred pursuant to a Public
Sale, and transferred or exchanged and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company
or (ii) if requested to do so, the Company would be required to deliver
certificates for such Shares not bearing a legend restricting further transfer
(other than legends required under Section 2.06 of the Shareholders'
Agreement, if applicable), and, in each case, subsequent sale or other
disposition of such Shares shall not require registration or qualification
under the Securities Act or any similar state or foreign law then in force.
(r) "Registration Statement" means any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, amendments and supplements to such Prospectus, all exhibits,
and all information incorporated by reference or deemed to be incorporated
by reference in such registration statement.
(s) "Restricted Securities" means the Shares; provided that
particular Shares shall cease to be Restricted Securities when such
securities shall have (x) been sold or transferred pursuant to a Public
Sale, or (y) been otherwise transferred or exchanged and new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or
any similar state law then in force or (z) ceased to be outstanding.
(t) "RNT" has the meaning set forth in the introductory paragraph
hereof.
(u) "Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
(v) "Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
(w) "SEC" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
(x) "Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Act of 1933 shall
include a reference to the comparable section, if any, of any such similar
Federal statute.
(y) "Securities Purchase Agreement" has the meaning set forth in
the recitals.
(z) "Selling Period" means the period during which a holder of
Registrable Securities shall be entitled to sell its Shares pursuant to a
Prospectus under the applicable provision of Article 2 of this Agreement.
(aa) "Shares" means shares of Common Stock of the Company (including
shares of Common Stock issued from time to time on conversion or exchange of
securities of the Company), currently held, or subsequently acquired, by a
Shareholder or transferee of, or successor to, a Shareholder, as adjusted for
any other shares of Common Stock or securities issued in respect of such
shares or securities because of stock splits, reverse stock splits, stock
dividends, reclassifications, recapitalizations, merger, consolidation, share
exchange or similar events.
(bb) "Shareholders" has the meaning set forth in the introductory
paragraph hereof.
(cc) "Shareholders' Agreement" means that certain Shareholders'
Agreement dated even date herewith among the Shareholders and the Company.
(dd) "Special Counsel" means any law firm retained from time to
time by the holders of a majority of the Registrable Securities to be sold
pursuant to a Registration Statement or during any Selling Period, as shall
be specified by such holders to the Company; provided that at no time there
shall be more than one Special Counsel the fees and expenses of which will
be paid by the Company pursuant to Section 2.4.
(ee) "ULLICO" has the meaning set forth in the introductory
paragraph hereof.
(ff) "Underwritten Offering" means a registration in which
Registrable Securities are sold or to be sold to one or more underwriters
for reoffering to the public.
Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
"Demand Holders" 2.2(a)
"Demand Registration" 2.2(a)
"Filing Date" 2.1(a)
"Initial Shelf Registration" 2.1(a)
"Initiating Holders" 2.1(a)
"Piggyback Registration" 2.3(a)
"Saleable Number" 3.1(a)
"Shelf Registration" 2.1(a)
"Subsequent Shelf Registration" 2.1(b)
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later than the
date (the "Filing Date") that is thirty (30) days, in the case of a
Registration Statement on Form S-3 (or successor or replacement form) and
sixty (60) days, in the case of a Registration Statement on Form S-1 (or
other available form), after receipt by the Company of a written request by
the holder or holders of a ___% of the Registrable Securities (the
"Initiating Holders"), the Company shall prepare and file with the SEC a
Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by the holders of
all of the Registrable Securities (the "Initial Shelf Registration"). The
Registration Statement for any Shelf Registration shall be on Form S-3 or
another available form permitting registration of such Registrable
Securities for resale by such holders in the manner or manners designated
by them (including, without limitation, one or more Underwritten
Offerings). The Company shall use all commercially reasonable best efforts
to cause the Initial Shelf Registration to become effective under the
Securities Act as promptly as is practicable and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the end
of the Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all
Registrable Securities shall have been sold or shall have ceased to be
Registrable Securities), the Company shall use all commercially reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty days of such
cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration covering
all of the Registrable Securities (a "Subsequent Shelf Registration"). If
a Subsequent Shelf Registration is filed, the Company shall use all
commercially reasonable best efforts to cause the Subsequent Shelf
Registration to become effective as promptly as is practicable after such
filing and to keep such Registration Statement continuously effective until
the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by any holder of
the Registrable Securities covered by such Registration Statement or by any
Managing Underwriter of such Registrable Securities.
(d) Each holder of Registrable Securities agrees that if it wishes
to sell any Registrable Securities pursuant to a Shelf Registration and
related Prospectus, it will do so only in accordance with this Section
2.1(d). Each holder of Registrable Securities agrees to give written
notice to the Company at least six (6) Business Days prior to any intended
distribution of Registrable Securities under the Shelf Registration, which
notice shall specify the date on which such holder intends to begin such
distribution and any information with respect to such holder and the
intended distribution of Registrable Securities by such holder required to
amend or supplement the Registration Statement with respect to such
intended distribution of Registrable Securities by such holder; provided
that no holder may give such notice unless such notice, together with
notices given by other holders of Registrable Securities joining in such
notice or giving similar notices, covers at least ___________ Shares. As
promptly as is practicable after the date such notice is provided, and in
any event within five (5) Business Days after such date, the Company shall
either:
(i) (A) prepare and file with the SEC a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or any other required document, so that such
Registration Statement will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; (B) provide each
Notice Holder a copy of any documents filed pursuant to Section
2.1(d)(i)(A); and (C) inform each Notice Holder that the Company has
complied with its obligations in Section 2.1(d)(i)(A) and that the
Registration Statement and related Prospectus may be used for the purpose
of selling all or any of such Registrable Securities (or that, if the
Company has filed a post-effective amendment to the Shelf Registration
which has not yet been declared effective, the Company will notify each
Notice Holder to that effect, will use all commercially reasonable best
efforts to secure the effectiveness of such post-effective amendment and
will immediately so notify each Notice Holder when the amendment has become
effective); each Notice Holder will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related Prospectus only
during the sixty (60) day period in the case of registration on Form S-3,
or the ninety (90) day period in the case of registration on any other form
available for registration, commencing with the date on which the Company
gives notice (such sixty (60) or ninety (90) day period, as the case may
be, to be calculated without regard to any Deferral Period), pursuant to
Section 2.1(d)(i)(C), that the Registration Statement and Prospectus may be
used for such purpose; each Notice Holder agrees that it will not sell any
Registrable Securities pursuant to such Registration Statement or
Prospectus after such Selling Period without giving a new notice of
intention to sell pursuant to Section 2.1(d) hereof and receiving a further
notice from the Company pursuant to Section 2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a period of time due to pending material
corporate developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a certificate
in writing, signed by its Chief Executive Officer, Chief Financial Officer
or General Counsel, to the Notice Holders, the Special Counsel and the
Managing Underwriters, if any, to the effect of the foregoing and, upon
receipt of such certificate, each such Notice Holder's Selling Period will
not commence until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2.1(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use all commercially
reasonable best efforts to ensure that the use of the Prospectus may be
resumed, and the Selling Period will commence, upon the earlier of (x)
public disclosure of such pending material corporate development or similar
material event or (y) a determination by the Company that, in the judgment
of the Company, public disclosure of such material corporate development or
similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under Section 2.1(d)(ii) to
defer the commencement of a Selling Period more than one time in any three
(3)-month period or two times in any twelve (12)-month period, and the
period in which a Selling Period is suspended shall not exceed fifteen (15)
days unless the Company shall deliver to such Notice Holders a second
certificate to the effect set forth above, which shall have the effect of
extending the period during which such Selling Period is deferred by up to
an additional fifteen (15) days, or such shorter period of time as is
specified in such second certificate. In no event shall the Company be
permitted to extend the period during which such Selling Period is deferred
from and after the date a Notice Holder provides notice to the Company in
accordance with Section 2.1(d)(ii) of its intention to distribute
Registrable Securities beyond such thirty (30)-day period.
SECTION 2.2 Demand Registration.
(a) At any time during the Effectiveness Period, any holder or
holders of Registrable Securities (the "Demand Holders") may request in
writing that the Company file a Registration Statement under the Securities
Act covering the registration of all or a portion of the Registrable
Securities then held by the Demand Holders (a "Demand Registration"). After
the date on which the Company receives such a request, the Company shall use
all commercially reasonable best efforts (i) to file a Registration Statement
under the Securities Act on the appropriate form (using Form S-3 or other
"short form," if available and advised by counsel) covering all of the
Registrable Securities specified by the holders within forty-five (45) days
after the date of such request (thirty (30) days in the case of a Form S-3)
and (ii) to cause such Registration Statement to be declared effective within
sixty (60) days (forty-five (45) days in the case of a Form S-3) after the
filing referenced in clause (i) above. The Company will keep the Demand
Registration current and effective for at least one hundred twenty (120) days
(such one hundred twenty (120) day period to be calculated without regard to
any Deferral Period), or a shorter period during which the holders shall have
sold all Registrable Securities covered by the Demand Registration.
(b) In the event a holder of Registrable Securities makes a demand to
register pursuant to Section 2.2 and later determines not to sell Registrable
Securities pursuant to such registration, the Company shall cease all efforts
to secure registration for such holder's Registrable Securities and shall take
all action necessary to prevent the commencement of effectiveness for any
registration that it is preparing or has prepared in connection with the
withdrawn request, and such holder's Demand Registration shall be reinstated
as if never exercised; provided, however, that such holder withdrawing such
demand shall pay all of the costs and expenses incurred by the Company in
connection with such withdrawn demand, unless the withdrawal is a result of a
breach by the Company of its obligations under this Agreement.
(c) National Union shall be entitled to two (2) Demand Registrations
pursuant to Section 2.2, provided that it shall not be entitled to exercise
more than one (1) Demand Registrations during any twelve (12) month period.
TSC, O&G, ULLICO and BLUM (together with The Common Fund and PB Capital) shall
each have one (1) Demand Registration right pursuant to Section 2.2.
(d) Notwithstanding the provisions of Section 2.2, if the Company is
requested to file any registration under Section 2.2:
(i) The Company shall have the right to defer the filing of a
Registration Statement relating to a Demand Registration during the ninety
(90) days following the effective date of any other Registration Statement
pertaining to an underwritten public offering of securities for the account of
the Company or security holders of the Company or such earlier date as such
distribution shall be completed; or
(ii) The Company shall have the right to defer the filing after
receipt of the Demand Holders request or if a Registration Statement relating
to a Demand Registration has already been filed, the Company may cause the
Registration Statement to be withdrawn and its effectiveness to be terminated,
or may postpone amending or supplementing the Registration Statement, until
the Board of Directors determines that the circumstances requiring the
withdrawal or postponement no longer exist, if, in the judgment of the
Company, (i) it is advisable to suspend use of the Prospectus for a period of
time due to pending material corporate developments or similar material events
that have not yet been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company or (ii) the Board of
Directors of the Company determines in good faith that there is a valid
business purpose or reason for delaying such filing or effectiveness. The
Company shall deliver a certificate in writing, signed by its Chief Executive
Officer, Chief Financial Officer or General Counsel, to the holders of
Registrable Securities, the Special Counsel and the Managing Underwriters, if
any, to the effect of the foregoing and, upon receipt of such certificate,
each such holder's Selling Period will not commence until such holder's
receipt of copies of a supplemented or amended Prospectus, or until it is
advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. The
Company will use all commercially reasonable best efforts to ensure that the
use of the Prospectus may be resumed, and the Selling Period will commence,
upon the earlier of (x) public disclosure of such pending material corporate
development or similar material event or (y) a determination by the Company
that, in the judgment of the Company, public disclosure of such material
corporate development or similar material event would not be prejudicial to
the Company. Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section 2.2(d)(ii)
to defer the commencement of a Selling Period more than sixty (60) days during
any twelve (12)-month period.
(e) A Demand Registration shall not count as such until a
Registration Statement becomes effective; provided, that if, after it has
become effective, the offering pursuant to the Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental authority, such registration shall be deemed
not to have been effected unless such stop order, injunction or other order
shall subsequently have been vacated or otherwise removed within fifteen (15)
days of the imposition thereof.
(f) The Demand Holders shall select the underwriter or underwriters
(including Managing Underwriter) of any offering pursuant to a Demand
Registration, subject to the approval of the Company, which approval shall not
be unreasonably withheld.
SECTION 2.3 Piggyback Registration.
(a) Subject to applicable stock exchange rules and securities
regulations, at least thirty (30) days prior to any public offering of any of
its capital stock of the Company for the account of the Company or any other
Person (other than a Registration Statement on Form S-4 or S-8 (or any
successor forms under the Securities Act), relating solely to employee benefit
plans or any transaction governed by Rule 145 of the Securities Act or
Registration Statement filed pursuant to the Shelf Registration under Section
2.1 of this Agreement or any substantially comparable shelf registration right
granted by the company to any shareholder not a party to this Agreement), the
Company shall give written notice of such proposed filing and of the proposed
date thereof to the holders and if, on or before the twentieth (20th) day (or
such earlier day specified if registration is for the account of any other
Person) following the date on which such notice is given, (i) a Registration
Statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the holders and (ii) the Company
shall receive written requests from any holders of Registrable Securities
requesting that the Company include among the securities covered by such
Registration Statement any or all of the Registrable Securities for offering,
specifying the amount of Registrable Securities that such holder intends to
sell and such holder's intended method of distribution, the Company shall
include such Registrable Securities in such Registration Statement, if filed,
so as to permit such Registrable Securities to be sold or disposed of in the
manner and on the terms of the offering thereof set forth in such request.
Each such registration shall hereinafter be called a "Piggyback Registration."
The Company shall select the underwriter or underwriters, including Managing
Underwriter, of any offering pursuant to a Registration Statement filed
pursuant to this Section 2.3, provided that any selected underwriter shall be
a well-recognized firm in good standing of national reputation.
(b) Upon receipt of a request for Piggyback Registration, the Company
shall use all commercially reasonable best efforts to cause all Registrable
Securities which the Company has been requested to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified
in the request of such Holder; provided, however, that the Company shall have
the right, prior to the effective date of the Registration Statement, to
postpone or withdraw such a registration effected pursuant to this Section 2.3
without obligation to the holders, other than the Company's obligation to pay
the expenses incurred by the holders in connection with the registration;
provided, further, that if the registration is pursuant to a Demand
Registration, the Company shall only have the right to defer the registration
in accordance with Section 2.2(d). In the event a holder of Registrable
Securities makes a demand to register pursuant to this Section 2.3 and later
determines not to sell Registrable Securities pursuant to such registration,
the Company shall cease all efforts to secure registration for such holder's
Registrable Securities.
(c) If such registration being effected pursuant to a Piggyback
Registration is a Company registration or a registration pursuant to an
underwritten offering, the shares of Common Stock available for sale shall be
allocated in accordance with Article III of this Agreement.
(d) No registration effected under Section 2.3 shall relieve the
Company of its obligation to effect a demand registration under Section 2.2,
nor shall any registration under this Section 2.3 be deemed to have been
effected under Section 2.2.
ARTICLE III
UNDERWRITERS' CUTBACK
SECTION 3.1 Underwriter's Cutback.
(a) If, in connection with any underwritten public offering for the
account of the Company, the Managing Underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock (the "Saleable Number")
which may be included in the Registration Statement that is less than all of
the shares of Common Stock sought to be registered because, in such Managing
Underwriter(s)' commercially reasonable judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the number of shares of Common Stock offered shall be limited to the Saleable
Number. The Company will promptly so advise each holder of Registrable
Securities that has requested registration, and will include shares of Common
Stock in such registration in the following order of priority: (A) the shares
of Common Stock the Company desires to include in such registration up to the
total number of shares sought to be registered; (B) the Registrable Securities
that the holders desire to include in such registration up to the total sought
to be registered; and (C) the balance of securities, if any, to be registered
by other holders of the Company's Common Stock to the extent such security
holders have piggyback registration rights and have sought to include their
securities in such registration, in each case until the aggregate number of
shares of Common Stock included in such registration is equal to the number
thereof that, in the opinion of such Managing Underwriter(s), can be sold
without adversely affecting the marketability thereof.
(b) If, in connection with any underwritten public offering for the
account of any security holder of the Company exercising its demand
registration right (other than the holder of Registrable Securities), the
Saleable Number which may be included in the Registration Statement is less
than all of the shares of Common Stock sought to be registered because, in the
Managing Underwriter(s)' commercially reasonable judgment, marketing or other
factors dictate such limitation is necessary to facilitate public
distributions, then the number of securities offered shall be limited to the
Saleable Number. The Company will promptly so advise each holder of
Registrable Securities that has requested registration, and will include in
such registration in the following order of priority: (A) the shares of Common
Stock sought to be registered by holders of the Company's Common Stock who
have exercised their demand registration right (to the extent the holders
exercising such rights possessed such rights prior to the date hereof); (B)
the Registrable Securities that the holders desire to include in such
registration up to the total sought to be registered and the shares of Common
Stock sought to be registered by holders of the Company's Common Stock who
have exercised their demand registration right (to the extent the holders
exercising such rights obtained such rights on or after the date hereof); (C)
any securities to be registered for the account of the Company together with
the balance of securities, if any, to be registered by other holders of the
Company's Common Stock to the extent such security holders have piggyback
registration rights and have sought to include their securities in such
registration, in each case until the aggregate number of shares of Common
Stock included in such registration is equal to the number thereof that, in
the opinion of such Managing Underwriter(s), can be sold without adversely
affecting the marketability thereof.
(c) If, in connection with any underwritten public offering for the
account of the holders of Registrable Securities pursuant to their Demand
Registration right, as the case may be, the Saleable Number which may be
included in the Registration Statement is less than all of the shares of
Common Stock sought to be registered because, in such underwriter(s)'
commercially reasonable judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distributions, then the Company
will promptly so advise each holder of Registrable Securities that has
requested registration, and will include in such registration in the following
order of priority: (A) the Registrable Shares that the holders who have
exercised their Demand Registration right desire to include in such
registration; (B) the shares of Registrable Securities sought to be registered
by holders exercising their Piggyback Registration rights; and (C) any
securities to be registered for the account of the Company together with the
balance of securities, if any, to be registered by other holders of the
Company's Common Stock to the extent such security holders have piggyback
registration rights and have sought to include their securities in such
registration, in each case until the aggregate number of shares of Common
Stock included in such registration is equal to the number thereof that, in
the opinion of such Managing Underwriter(s), can be sold without adversely
affecting the marketability thereof.
(d) If the number of shares of Common Stock that the Managing
Underwriter(s) advise the Company can be registered is less than all of the
Registrable Securities that the holders have sought to register each holder
requesting registration pursuant to rights granted under this Agreement shall
be allocated the number of Registrable Securities eligible for registration
pro rata in proportion to the number of Registrable Securities sought to be
registered under the applicable Registration Statement without regard to the
securities held by holders who have not sought registration.
ARTICLE IV
REGISTRATION PROCEDURES
SECTION 4.1 Registration Procedures. In connection with the
Company's registration obligations under Article II hereof, the Company shall
effect such registrations to permit the sale of the Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on the form specified in this Agreement or, if no form
has been specified, on any appropriate form under the Securities Act available
for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
use all commercially reasonable best efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, that before filing any such Registration Statement or Prospectus or
any amendments or supplements thereto (other than documents that would be
incorporated or deemed to be incorporated therein by reference and that the
Company is required by applicable securities laws or stock exchange
requirements to file) the Company shall furnish to the holders of Registrable
Securities, the Special Counsel and the Managing Underwriters of such
offering, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of the holders of Registrable
Securities, the Special Counsel and such Managing Underwriters, and the
Company shall not file any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (other than such documents which,
upon filing, would be incorporated or deemed to be incorporated by reference
therein and that the Company is required by applicable securities laws or
stock exchange requirements to file) to which the holders of a majority of the
Registrable Securities covered by such Registration Statement or the Special
Counsel shall reasonably object in writing within two full Business Days after
receipt of such materials.
(b) Prepare and file with the SEC such amendments and post-
effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Article 2; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the
Special Counsel and the Managing Underwriters, if any, promptly, and (if
requested by any such person) confirm such notice in writing, (i) when a
Prospectus, any Prospectus supplement, a Registration Statement, an
amendment or a post-effective amendment to a Registration Statement has
been filed with the SEC, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, and of the contents of such
request, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which
makes any statement of a material fact in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or which would require the making
of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, provided that the Company shall not
be required to disclose such fact or event if such fact or event has not
been, and is not required to be, publicly disclosed, and (vi) of the
Company's determination that a post-effective amendment to a Registration
Statement or supplement to a Prospectus would be appropriate.
(d) Use all commercially reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, at the earliest possible moment.
(e) If reasonably requested by a holder of Registrable Securities,
the Special Counsel, the Managing Underwriters, if any, or requested by the
holders of a majority of the Registrable Securities being sold, (i)
promptly incorporate in a Prospectus supplement or amendment or post-
effective amendment to a Registration Statement such information as the
holders of Registrable Securities, the Special Counsel, the Managing
Underwriters, if any, or such holders, in connection with any offering of
Registrable Securities, agree should be included therein as required by
applicable law, and (ii) make all required filings of such Prospectus
supplement or such amendment or post-effective amendment as promptly as is
practicable after the Company has received notification of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
provided, that the Company shall not be required to take any actions under
this Section 4.1(e) that are not, in the reasonable opinion of counsel for
the Company, in compliance with or required by applicable law.
(f) Furnish to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, without charge, at
least one conformed copy of the Registration Statement or Statements and
any amendment thereto, including financial statements but excluding
schedules, all documents incorporated or deemed to be incorporated therein
by reference and all exhibits (unless requested in writing by such holder,
Special Counsel or Managing Underwriter).
(g) Deliver to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, in connection with
any offering of Registrable Securities, without charge, as many copies of
the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement
thereto as such persons may reasonably request; and the Company hereby
consents to the use of such Prospectus or each amendment or supplement
thereto by each of the selling holders of Registrable Securities and the
underwriters, if any, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling holders of Registrable
Securities, the Managing Underwriters, if any, and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling holder or Managing Underwriter reasonably
requests in writing to the Company; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to
(i) qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where
it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as
may be required solely as a consequence of the nature of a selling holder
of Registrable Securities, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the selling
holder or holders thereof or the Managing Underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of
any event as a result of which a Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, or a Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, promptly notify
the holders, Special Counsel and any Managing Underwrite to discontinue use
of such Registration Statement; promptly prepare and file an amendment or
post-effective amendment to each Registration Statement or a supplement to
the related Prospectus or any document incorporated therein by reference or
file any other required document (such as a Current Report on Form 8-K)
that would be incorporated by reference into the Registration Statement so
that the Registration Statement shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and so
that the Prospectus will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to a Registration Statement, use all
commercially reasonable best efforts to cause it to become effective as
promptly as is practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such
other actions in connection therewith (including, in the event of an
underwritten offering, those reasonably requested by the Managing
Underwriters, if any, or the holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into, and if the registration is an
underwritten registration, (i) make such representations and warranties,
subject to the Company's ability to do so, to the holders of such
Registrable Securities and the underwriters with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any, Special Counsel and the holders of a majority of the
Registrable Securities being sold) addressed to each of the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and Managing Underwriters; (iii) obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to
be acquired by the Company for which financial statements and financial
data is, or is required to be, included in the Registration Statement),
addressed to each of the Managing Underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in
"comfort" letters in connection with Underwritten Offerings; and (iv)
deliver such documents and certificates as may be reasonably requested by
the holders of a majority of the Registrable Securities being sold, the
Special Counsel and the Managing Underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and
its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for
inspection by a representative of the holders of Registrable Securities
being sold, any Managing Underwriter participating in any disposition of
Registrable Securities, if any, and any attorney or accountant retained by
such selling holders or underwriter, financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries, and
cause the executive officers, directors and employees of the Company and
its subsidiaries to supply all information reasonably requested by any such
representative, Managing Underwriter, attorney or accountant in connection
with such disposition; subject to reasonable written assurances by each
such person that such information will only be used in connection with
matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) no later than 45 days after the end of any 12-
month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment
or best efforts underwritten offering, and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(n) Cooperate with the selling holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the selling holders may
request.
(o) Use all commercially reasonable best efforts to provide a
CUSIP number for the Registrable Securities not later than the effective
date of the registration.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or quotation system on
which the Company's Common Stock is then listed no later than the date the
Registration Statement is declared effective and, in connection therewith,
to the extent applicable, to make such filings under the Exchange Act
(e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc.
(r) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
Registration Statement.
ARTICLE V
HOLDER'S OBLIGATIONS
SECTION 5.1. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by becoming an
owner or transferee of any Registrable Securities, that no holder of
Registrable Securities shall be entitled to sell any of such Registrable
Securities pursuant to a Registration Statement or to receive a Prospectus
relating thereto, unless such holder has furnished the Company with any
applicable notice required pursuant to Article 2 hereof (including the
information required to accompany such notice) and, promptly after the
Company's request, such other information regarding such holder and the
distribution of such Registrable Securities as the Company may from time to
time reasonably request. The Company may exclude from such registration
the Registrable Securities of any holder who does not furnish such
information provided above for so long as such information is not so
furnished. Each holder of Registrable Securities as to which any
Registration Statement is being effected agrees promptly to furnish to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not
misleading. Any sale of any Registrable Securities by any holder shall
constitute a representation and warranty by such holder that the
information relating to such holder and its plan of distribution is as set
forth in the Prospectus delivered by such holder in connection with such
disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such holder or
its plan of distribution and that such Prospectus does not as of the time
of such sale omit to state any material fact relating to such holder or its
plan of distribution necessary to make the statements in such Prospectus,
in light of the circumstances under which they were made, not misleading.
(b) The Company agrees (x) that if any holder of Registrable
Securities shall send a written notice to the Company of an intended
distribution of Registrable Securities under the Shelf Registration
pursuant to Section 2.1(d) or the Demand Registration pursuant to Section
2.2, the Company shall not sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of its equity securities or securities convertible into
or exchangeable or exercisable for any of such securities during the period
from first day of the applicable Selling Period until the date that is 90
days after the date when such holder shall have made such distribution of
Registrable Securities under the Shelf Registration or Demand Registration,
as the case may be, as the holder or Managing Underwriter (in the case of
an Underwritten Offering) shall advise the Company (provided, that if the
holder or Managing Underwriter shall fail to advise the Company of any such
date prior to the end of the applicable Selling Period, such period shall
end on the last day of the applicable Selling Period), except (i) as part
of such registration, (ii) pursuant to registrations on Form S-4 or S-8 or
any successor or similar forms thereto or (iii) as otherwise permitted by
the Managing Underwriter of such offering (if any), and (y) to use all
commercially reasonable best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased from the
Company at any time after the date of this Agreement (other than in a
public offering) to agree not to sell, make any short sale of, loan, grant
any option for the purchase of, effect any public sale or distribution of
or otherwise dispose of such securities during such period except as part
of such underwritten registration; provided, that no holder of Registrable
Securities included in any underwritten registration shall be required to
make any representations or warranties to the Company or the underwriters
other than representations and warranties regarding such holder and such
holder's intended method of distribution.
(c) During any Selling Period (other than during a Deferral
Period), immediately upon the existence of any fact or the occurrence of
any event as a result of which a Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, or a Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, upon being
notified by the Company promptly discontinue use of such Registration
Statement until the Company in accordance with its obligations under this
Agreement prepares and files an amendment or post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document (such as a Current Report on Form 8-K) that would be incorporated
by reference into the Registration Statement so that the Registration
Statement shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and so that the Prospectus will
not contain any untrue statement of a material fact or omit to state any
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder.
(d) Deliver to prospective investors and investors copies of the
Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement
thereto in accordance with the Securities Act and applicable state
securities laws.
ARTICLE VI
EXPENSES
SECTION 6.1 Registration Expenses. All fees and expenses
incident to the Company's performance of or compliance with this Agreement
shall be borne by the Company whether or not any of the Registration
Statements become effective. Such fees and expenses shall include, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) with
respect to compliance with federal securities or Blue Sky laws (including,
without limitation, fees and disbursements of Special Counsel in connection
with Blue Sky qualifications of the Registrable Securities laws of such
jurisdictions as the Managing Underwriters, if any, or holders of a
majority of the Registrable Securities being sold may designate)), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with
The Depositary Trust Company and of printing Prospectuses if the printing
of Prospectuses is requested by the Special Counsel or the holders of a
majority of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for the Company and the
Special Counsel in connection with the Registration, (v) fees and
disbursements of all independent certified public accountants (including
the expenses of any special audit and "comfort" letters required by or
incident to such performance) and (vi) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company
shall pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or interim review of
financial statements, the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange on
which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the
Company. Notwithstanding the provisions of this Section 6.1, each seller
of Registrable Securities shall pay all registration expenses to the extent
the Company is prohibited by applicable Blue Sky laws from paying for or on
behalf of such seller of Registrable Securities.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Company Indemnification. The Company agrees to
indemnify and hold harmless each holder of Registrable Securities whose
Registrable Securities are covered by any Registration Statement, its
directors and officers and each other Person, if any, who controls such
holder within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which any such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement under which such
securities were registered under the Securities Act, any preliminary
Prospectus, final Prospectus or summary Prospectus contained therein, or
any amendment or supplement thereto, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Company will reimburse
each such indemnified party for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such preliminary Prospectus, final Prospectus, summary
Prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such holder
specifically for use in the preparation thereof. In addition, the Company
shall indemnify any underwriter of such offering and each other Person, if
any, who controls any such underwriter within the meaning of the Securities
Act in substantially the same manner and to substantially the same extent
as the indemnity herein provided to each Indemnified Party. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by
such holder.
SECTION 7.2 Seller Indemnification. Each prospective seller of
Registrable Securities hereunder severally, and not jointly, shall
indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 7.1) the Company, each director of the Company, each
officer of the Company and each other person, if any, who controls the
Company within the meaning of the Securities Act, with respect to any
statement or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary Prospectus, final Prospectus or
summary Prospectus contained therein, or any amendment or supplement
thereof, if such statement or alleged statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such seller
specifically for use in the preparation of such Registration Statement,
preliminary Prospectus, final Prospectus, summary Prospectus or amendment
or supplement. Any such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any
such director, officer or controlling person and shall survive the transfer
of such securities by such seller. The amount payable by any prospective
seller of Registrable Securities with respect to the indemnification set
forth in this Section 7.2 in connection with any offering of Registrable
Securities will not exceed the amount of the gain realized by such
prospective seller pursuant to such offering.
SECTION 7.3 Indemnification Procedure. Promptly after receipt by
an indemnified party of notice of the commencement of any action or
proceeding involving a claim referred to in the preceding sections of this
Article VII, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter
of the commencement of such action; provided that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding sections of this
Article VII, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to
the extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation. No indemnified party shall consent to
entry of any judgment or enter into any settlement of any such action the
defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
SECTION 7.4 Remedies.
(a) If the indemnification provided for in Section 7.1 or 7.2, as
the case may be, is unavailable to an indemnified party in respect of any
expense, loss, claim, damage or liability referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such expense, loss, claim, damage or liability (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the holder or underwriter, as the case may
be, on the other from the distribution of the Registrable Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the holder or underwriter, as
the case may be, on the other in connection with the statements or
omissions which resulted in such expense, loss, damage or liability, as
well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the holder or underwriter, as the case
may be, on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by the
Company, by the holder or by the underwriter and parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that the foregoing contribution agreement
shall not inure to the benefit of any indemnified party if indemnification
would be unavailable to such indemnified party by reason of the proviso
contained in the first sentence of subdivision (a) of this Section 7.4, and
in no event shall the obligation of any indemnifying party to contribute
under this subdivision (d) exceed the amount that such indemnifying party
would have been obligated to pay by way of indemnification if the
indemnification provided for under subdivisions (a) or (b) of this Section
2.5 had been available under the circumstances.
(b) The Company and the holders of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
Section 7.4 were determined by pro rata allocation (even if the holders and
any underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph (a). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim.
(c) Notwithstanding the other provisions of this Section 7.4, no
holder of Registrable Securities or underwriter shall be required to
contribute any amount in excess of the amount by which (i) in the case of
any such holder, the gain realized by such holder from the sale of
Registrable Securities or (ii) in the case of an underwriter, the total
price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the
amount of any damages that such holder or underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
ARTICLE VIII
REPORTS
SECTION 8.1 Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder and will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the SEC. Upon the request of any holder
of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
The Company further covenants that it will cooperate with any holder of
Registrable Securities and take such further reasonable action as any
holder of Registrable Securities may reasonably request (including, without
limitation, making such reasonable representations as any such holder may
reasonably request), all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
and Rule 144A, as applicable, under the Securities Act.
(b) For so long as any shares of Registrable Securities are
Restricted Securities within the meaning of Rule 144(a)(3) under the
Securities Act, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) of the Exchange
Act, make available to any holder of Registrable Securities in connection
with the sale by such holder of Registrable Securities and any prospective
purchaser of Registrable Securities from such, in each case upon request,
the information specified in, and meeting the requirements of, Rule
144A(d)(4) under the Securities Act.
(c) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other eligibility
requirements for use of Form S-3 set forth in the instructions to Form S-3
(other than Registration Requirement A.5).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process
in regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company: Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Telecopy No.: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 01209
Attn: Richard A. Soden, Esq.
Telecopy No.: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald N. Tutor
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: Christopher H. Lee
Chris Saxman
Facsimile: (212) 458-2250
With a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John P. Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia
Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
Washington, D.C. 2001
Attn: Robert Kennedy
Facsimile: (202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: Alan J. Barton
Facsimile: (213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 9.2 Binding Nature of Agreement. This Agreement shall
be binding upon and inure to the benefit of and be enforceable by the
parties hereto or their successors in interest, except as expressly
otherwise provided herein.
SECTION 9.3 Descriptive Headings. The descriptive headings of
the several sections and paragraphs of this Agreement are inserted for
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 9.4 Specific Performance. Without limiting the rights of
each party hereto to pursue all other legal and equitable rights available
to such party for the other parties' failure to perform their obligations
under this Agreement, the parties hereto acknowledge and agree that the
remedy at law for any failure to perform their obligations hereunder would
be inadequate and that each of them, respectively, shall be entitled to
specific performance, injunctive relief or other equitable remedies in the
event of any such failure.
SECTION 9.5 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the
internal laws of the State of New York. Each of the parties hereto
irrevocably submits to the personal exclusive jurisdiction of the United
States District Court for the Southern District of New York for the purposes
of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby (and, to the extent permitted under applicable
rules of procedure, agrees not to commence any action, suit or proceeding
relating hereto except in such court). Each of the parties further agree that
service of any process, summons, notice or document hand delivered or sent by
registered mail to such party's respective address set forth in Section 9.1
will be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction as
set forth in the immediately preceding sentence. Each of the parties hereto
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the United States District Court for the
Southern District of New York, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in such court that any
such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
SECTION 9.6 WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.7 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential, punitive or exemplary damages in respect of this
Agreement under any circumstances or for any reason. Consequential damages
are, without limitation, lost profits, lost revenue and the like but do not
include the actual costs incurred in obtaining substitute performance where
there has been a failure to perform an obligation under any provision of this
Agreement.
SECTION 9.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 9.9 Amendments to Laws. Any reference to a section,
form, rule or regulation of the Securities Act or Exchange Act, includes
any successor section, form, rule, regulation or law.
SECTION 9.10 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed
an original, but all such counterparts shall together constitute one and
the same instrument.
SECTION 9.11 Entire Agreement. Each party expressly acknowledges
and agrees that this Agreement is the final expression of the parties
agreement, and supercede all prior and contemporaneous agreements and
understandings, both oral and written, among the parties, with respect to
the subject matter hereof. Except as set forth in this Agreement, the
Securities Purchase Agreement and the Shareholders' Agreement, the parties
hereto acknowledge that they are not parties to, and have no knowledge of,
any agreements or understandings, both oral and written, to act in concert
or as a group (including, without limitation, as a group within the meaning
of Section13(d) of the Exchange Act), or otherwise act together, with
respect to the Company or its securities.
SECTION 9.12 Amendment and Waiver. No provision of this
Agreement may be waived except by an instrument in writing signed by the
party against whom the waiver is to be effective. No provision of this
Agreement may be amended or modified except by an instrument in writing
signed by holders of a majority of Registrable Securities or as otherwise
provided in this Agreement, provided, that no such amendment may adversely
affect the rights of any holder of Registrable Securities unless signed by
such holder.
SECTION 9.13 No Third Party Beneficiaries. Nothing in this
Agreement shall convey any rights upon any person or entity which is not a
party or a transferee of or successor to a party to this Agreement.
SECTION 9.14 Effectiveness. This Agreement shall become
effective immediately at such time when Closing under the Securities
Purchase Agreement shall occur.
SECTION 9.15 No Prior Agreements; No Inconsistent Agreements.
(a) The Company, BLUM, The Common Fund, PB Capital and ULLICO
hereby agree that this Registration Rights Agreement supercedes and
replaces all prior agreements between or among those Persons relating to
registration rights.
(b) The Company has not entered into and will not enter into any
registration rights agreement or similar arrangements the performance by
the Company of the terms of which would in any manner conflict with,
restrict or be inconsistent with the performance by the Company of its
obligations under this Agreement.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each party hereto have caused this Agreement to
be duly executed by its authorized officer as of the day and year first above
written.
PERINI CORPORATION
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
TUTOR-SALIBA CORPORATION
By: _________________________________________
Name: Ronald N. Tutor
Title: President and Chief Executive
RONALD N. TUTOR
_____________________________________________
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
O&G INDUSTRIES, INC.
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ______________________________________
Name: Murray A. Indick
Title: Partner, General Counsel and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ______________________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its investment advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By: ________________________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
Exhibit C
SHAREHOLDERS' AGREEMENT
dated as of _______ ___, 2000
among
TUTOR-SALIBA CORPORATION,
RONALD N. TUTOR,
O&G INDUSTRIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
BLUM CAPITAL PARTNERS, L.P.
PB CAPITAL PARTNERS, L.P.,
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS,
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P,
and
PERINI CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Other Terms . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE II Shares Subject to this Agreement; Transfers . . . . . . . . . . 7
SECTION 2.01 Shares Subject to this Agreement . . . . . . . . . . . . 7
SECTION 2.02 Restrictions on Transfer . . . . . . . . . . . . . . . . 7
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings . . 8
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.8
SECTION 2.05 Attempted Transfers in Violation of this Agreement . . . 9
SECTION 2.06 Legend . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III Put Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.01 Put Option . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.02 Put Period . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.03 Put Notice . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.04 Put Price . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.05 Put Closing . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.06 Assignment of Put Option . . . . . . . . . . . . . . . . 12
SECTION 3.07 RNT Obligation Under Put Option . . . . . . . . . . . . 12
SECTION 3.08 Put Postponement . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.09 Exercise of Put Option Not a Transfer . . . . . . . . . 12
ARTICLE IV Call Rights . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.01 Call Option . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.02 Call Period . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.03 Call Notice . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.04 Call Price . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.05 Call Closing . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.06 Assignment of Call Option . . . . . . . . . . . . . . . 14
SECTION 4.07 Call Postponement . . . . . . . . . . . . . . . . . . . 14
SECTION 4.08 Exercise of Call Option Not a Transfer . . . . . . . . . 14
ARTICLE V Rights of First Refusal . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.01 Right of First Refusal on Transfers . . . . . . . . . . 14
SECTION 5.02 Notice of Intent to Purchase . . . . . . . . . . . . . . 15
SECTION 5.03 Offered Shares Closing . . . . . . . . . . . . . . . . . 15
SECTION 5.04 Sale to Third Party . . . . . . . . . . . . . . . . . . 16
SECTION 5.05 Limitation as to National Union . . . . . . . . . . . . 16
ARTICLE VI Tag-Along Rights . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.01 Tag-Along Option . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.02 Sale to Third Party . . . . . . . . . . . . . . . . . . 17
SECTION 6.03 Limitation as to National Union . . . . . . . . . . . . 17
ARTICLE VII The Company's Board of Directors; Publicity . . . . . . . . . 17
SECTION 7.01 Nominees . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 7.02 Voting for Election of Directors . . . . . . . . . . . . 19
SECTION 7.03 Vacancy; Removal . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.04 Continuation as Director . . . . . . . . . . . . . . . . 19
SECTION 7.05 Publicity . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.06 Observer Rights for Shareholder Designee . . . . . . . . 19
SECTION 7.07 Subscription Rights . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.01 Injunctive Relief . . . . . . . . . . . . . . . . . . . 21
SECTION 8.02 Entire Agreement . . . . . . . . . . . . . . . . . . . . 21
SECTION 8.03 Binding Effect; Benefit . . . . . . . . . . . . . . . . 21
SECTION 8.04 Assignability . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.05 Amendment; Waiver; Termination . . . . . . . . . . . . . 22
SECTION 8.06 Notices . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.07 Fees and Expenses . . . . . . . . . . . . . . . . . . . 24
SECTION 8.08 Headings . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.09 Counterparts . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.10 Governing Laws; Consent to Jurisdiction . . . . . . . . 25
SECTION 8.11 Limitations on Damages . . . . . . . . . . . . . . . . . 25
SECTION 8.12 Severability . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.13 Amendments to Laws . . . . . . . . . . . . . . . . . . . 25
SECTION 8.14 No Third Party Beneficiaries . . . . . . . . . . . . . . 25
SECTION 8.15 Mutual Drafting . . . . . . . . . . . . . . . . . . . . 26
SECTION 8.16 Further Representations . . . . . . . . . . . . . . . . 26
SHAREHOLDERS' AGREEMENT dated as of ________ __, 2000 (the "Agreement"),
by and among Tutor-Saliba Corporation, a California corporation ("TSC"),
Ronald N. Tutor ("RNT"), National Union Fire Insurance Company of Pittsburgh,
PA, a Pennsylvania corporation ("National Union"), O&G Industries, Inc., a
Connecticut corporation ("O&G"), BLUM Capital Partners, L.P., a California
limited partnership ("BLUM"), PB Capital Partners, L.P., a Delaware limited
partnership ("PB Capital"), The Common Fund for Non-Profit Organizations, a
New York non-profit corporation ("The Common Fund"), and The Union Labor Life
Insurance Company, a Maryland corporation acting on behalf of its Separate
Account P ("ULLICO"), and Perini Corporation, a Massachusetts corporation (the
"Company"). Except to the extent a signatory hereto is explicitly excluded
from the application of particular provisions of this Agreement as specified
below, TSC, National Union, O&G, BLUM, PB Capital, The Common Fund and ULLICO
are collectively referred to as the "Shareholders". O&G, BLUM, PB Capital,
The Common Fund and ULLICO shall each be a party to this Agreement solely for
purposes of Sections 2.04, 2.05 and 2.06 and Articles VI, VII and VIII. The
Company shall be a party to this Agreement solely for purposes of Sections
2.03, 2.04, 2.05 and 2.06 and Articles VII and VIII.
W I T N E S S E T H :
WHEREAS, pursuant to the Securities Purchase Agreement (as defined below)
TSC, National Union and O&G have agreed to acquire securities of the Company;
and
WHEREAS, RNT is the sole shareholder of TSC; and
WHEREAS, the parties hereto desire to enter into this Agreement to govern
certain of their relative rights, duties and obligations after consummation of
the transactions contemplated by the Securities Purchase Agreement; and
WHEREAS, O&G, BLUM, PB Capital, The Common Fund and ULLICO have agreed
to become parties to this Agreement to govern certain restricted transfers as
set forth in Sections 2.04, 2.05 and 2.06, to provide tag-along rights and
obligations as set forth in Article VI and to provide certain rights and
obligations with respect to the election of directors, observer status and
subscription as set forth in Article VII only.
NOW, THEREFORE, the Shareholders having authorized the execution and
delivery of this Shareholders' Agreement as required by the laws of the
jurisdiction in which each is incorporated or organized, as the case may be,
and intending to be bound hereby, agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions.
The following terms used in this Agreement have the following meanings:
(a) "Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person, provided that no security holder of the Company
shall be deemed an Affiliate of any other security holder solely by reason of
any investment in the Company.
(b) "Beneficially Own" shall have the meaning set forth in Rules
13d-3 or 16a-1 of the Exchange Act.
(c) "BLUM" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(d) "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are required or
authorized by law to close.
(e) "Call Event" means the proposed Transfer of Put/Call Shares
to a bona fide purchaser through a registered public offering pursuant to
registration rights granted under the Registration Rights Agreement.
(f) "Call Return" means 14% per annum.
(g) "Closing" means the Closing as defined in the Securities
Purchase Agreement.
(h) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(i) "The Common Fund" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(j) "Common Stock" means the common stock, par value $1.00 per
share, of the Company.
(k) "Company" has the meaning ascribed to it in the introductory
paragraph of this Agreement.
(l) "Control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the power, direct or indirect, (i) to vote or
direct the voting of more than 50% of the outstanding shares of voting
securities of such Person, or (ii) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise,
except that no change of control will be deemed to have occurred as a result
of customary rights granted in any indenture, credit agreement or other
agreement or instrument unless and until there has been a default under the
terms of that agreement and the lender exercises the rights granted therein.
(m) "Covered Common Stock" means the shares of Common Stock of
the Company purchased by a Shareholder pursuant to the Securities Purchase
Agreement or otherwise owned by a Shareholder on the date hereof.
(n) "Definitive Agreements" mean this Agreement and the
Securities Purchase Agreement, each as amended, modified or supplemented from
time to time.
(o) "Distributable Property-in-Kind" means Property-in-Kind
(other than Property-in-Kind that has been included in the calculation of
Distributions) distributed or declared for distribution to a Shareholder on
account of any Shares or other securities distributed in kind on account of
Shares.
(p) "Distributions" mean (i) all cash dividends declared and
paid on account of any Share, plus (ii) the cash proceeds received by a
Shareholder from the sale of Property-in-Kind (minus all costs incurred by the
Shareholder in connection with the sale, including attorneys fees and
expenses), plus (iii) the Fair Market Value of any Property-in-Kind received
by the Shareholder in exchange for Shares.
(q) "Equity Security" means (i) any Common Stock or other Voting
Securities, (ii) any securities of the Company convertible into or
exchangeable for Common Stock or other Voting Securities or (iii) any options,
rights or warrants (or any similar securities) issued by the Company to
acquire Common Stock or other Voting Securities, in each case whether
preferred or common, of any class or series, outstanding prior to or any time
after the date of this Agreement.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(s) "Fair Market Value" means (i) with respect to any security
listed on a national securities exchange or quoted on the National Association
of Securities Dealers, Inc. National Market System, the average of the daily
closing prices on the American Stock Exchange (or the principal exchange or
automated trading system on which such security may be listed or may trade)
for the twenty (20) consecutive trading days commencing on the fifth (5th)
trading day prior to the date as of which the Fair Market Value is being
determined, and (ii) with respect to any security other than one described in
clause (i) or any other property or assets, the Fair Market Value shall be the
fair market value of such security or property established by two independent
investment banking firms with national reputations, one of who will be
selected by the Put Purchaser or Call Purchaser, as the case may be, and one
of whom will be selected by the Put Seller or Call Seller, as the case may be.
If the two investment banking firms arrive at fair market values that differ
by more than 10%, the two investment banking firms shall select a third
investment banking firm with a national reputation. The Fair Market Value
shall be equal to the average of the two appraisals closest in value to each
other in the case of three appraisals, or the average of the two appraisals if
there is not a third appraisal. The closing price referred to in clause (i)
for each day shall be the closing price, if reported, or, if the closing price
is not reported, the average of the closing bid and asked prices as reported
by the Nasdaq National Market (or such principal exchange or market) or a
similar source selected from time to time by the Company for quotation of its
Common Stock. In the event the closing prices required by clause (i) are
unavailable, Fair Market Value shall be determined based on the ten (10)
consecutive trading days commencing on the fifth (5th) trading day prior to
the relevant date or, if such closing prices are unavailable, Fair Market
Value shall be determined as provided in clause (ii).
(t) "Initial Investment per Share" means the $4.25 per Share
paid by National Union for the Covered Common Stock under the Securities
Purchase Agreement, as adjusted for any subsequent common stock dividends,
stock splits, reverse stock splits or other similar transactions.
(u) "National Union" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(v) "New Security" means any Equity Security issued by the
Company after the Closing; provided that "New Security" shall not include (i)
any securities issuable upon conversion of any convertible Equity Security,
(ii) any securities issuable upon exercise of any option, warrant or other
similar Equity Security, (iii) any securities issuable in connection with any
stock split, stock dividend or recapitalization of the Company where such
securities are issued to all stockholders of the Company on a pro rata basis,
(iv) any securities issued to officers, employees or directors of the Company
or any of its Subsidiaries pursuant to any Board-approved officer, employee or
director benefit plan or arrangement, (v) any securities issued in connection
with any transaction whereby the Company acquires the stock, assets or
business of a third party not prohibited by this Agreement, or (vi) any
security issued in any public offering registered under the Securities Act .
(w) "O&G" has the meaning ascribed to it in the introductory
paragraph of this Agreement.
(x) "PB Capital" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(y) "Person" means and includes an individual, a partnership, a
joint venture, a corporation, a trust, a limited liability company, an
unincorporated organization, any foreign, federal, state or local court or
tribunal or administrative, governmental or regulatory body, agency
commission, division, department, public body or other authority, or any other
organization or entity.
(z) "Pro Rata Share" means, as to any Shareholder or Permitted
Transferee, the fraction of an entire issuance of New Securities, the
numerator of which shall be the sum of (w) the number of shares of Common
Stock owned by such Shareholder or Permitted Transferee immediately prior to
such issuance of such New Securities plus (x) the number of shares of Common
Stock into which then outstanding convertible securities (including, without
limitation, options and warrants) owned by such Shareholder or Permitted
Transferee are then exercisable or convertible, and the denominator of which
shall be the sum of (y) the aggregate number of shares of Common Stock
outstanding immediately prior to such issuance of such New Securities plus (y)
the number of shares of Common Stock into which then outstanding convertible
securities (including, without limitation, options and warrants) are then
exercisable or convertible.
(aa) "Property-in-Kind" means securities, personal property or
other assets (other than cash or additional shares of Common Stock)
distributed to a Shareholder on account of Shares or other securities
distributed in kind on account of Shares, whether through a dividend,
recapitalization, reorganization, merger or similar transaction.
(bb) "Put Event" means (i) a change of Control of the Company;
(ii) a change of Control of TSC; (iii) one or more Transfers (other than a
Transfer to a Permitted Transferee) by TSC and its Permitted Transferees of
shares of Common Stock such that RNT fails to have sole direct or indirect
Beneficial Ownership of at least 10% of the outstanding Common Stock of the
Company (for purposes hereof, the voting securities of the Company
Beneficially Owned, directly or indirectly, by TSC shall be deemed solely
Beneficially Owned indirectly by RNT), (iv) RNT shall not be involved in the
management of the Company or TSC, (v) breach of any provisions of the
Definitive Agreements arising out of the sole actions of RNT or TSC; (vi) an
order shall be entered by a court of competent jurisdiction finding TSC or RNT
to be bankrupt or insolvent, ordering or approving liquidation or
reorganization of TSC or appointing a receiver for all or substantially all of
the property of TSC or RNT and such order shall not be vacated or stayed
within 60 days, or an assignment shall be made by TSC or RNT for the benefit
of its creditors; or (vii) acceleration of payment of a material principal
amount of the senior debt of the Company. No Transfer of any security of the
Company by National Union or any Permitted Transferee or Co-investor shall
constitute or give rise to a Put Event hereunder.
(cc) "Put Return" means 10% per annum.
(dd) "Put/Call Shares" means up to 50% of the Shares purchased
by National Union at Closing, which Shares (including Shares issued on account
of any subsequent Common Stock dividends, stock splits, reverse stock splits
or other similar transactions relating thereto) shall bear the legends set
forth in subsections 2.06(a) and (b) and which shall be represented by a cer-
tificate separate and distinct from any Shares held by National Union or its
Permitted Transferee, if any, that are not identically legended, and (ii)
Shares represented by certificates issued to replace the certificate(s)
referred to in the preceding clause; provided, however, that the Put/Call
Shares shall not include Shares Transferred in accordance with Article V
(except as provided in Section 5.04) or Article VI (except as provided in
Section 6.02) of this Agreement. Shares shall cease to be Put/Call Shares
upon the lapse or termination of the Put Option or Call Option.
(ee) "Registration Rights Agreement" means that certain
Registration Rights Agreement dated even date herewith among the Company, TSC,
National Union and O&G, as amended, modified or supplemented from time to
time.
(ff) "ROFR Shares" means: (i) as to National Union, its
Permitted Transferees and any Co-Investors, any Put/Call Shares owned by such
party (including Shares issued on account of any subsequent Common Stock
dividends, stock splits, reverse stock splits or other similar transactions
relating thereto), and (ii) as to TSC and its Permitted Transferees, any
Shares owned by such party immediately following the Closing (including Shares
issued on account of any subsequent Common Stock dividends, stock splits,
reverse stock splits or other similar transactions relating thereto).
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Securities Act" means the Securities Act of 1933, as
amended.
(ii) "Securities Purchase Agreement" means that certain
Securities Purchase Agreement dated even date herewith entered into by and
among the Company, TSC, National Union and O&G relating to the purchase and
sale of Covered Common Stock, as amended, modified or supplemented from time
to time.
(jj) "Shareholder" has the meaning ascribed to it in the
introductory paragraph to this Agreement and also includes any Permitted
Transferee, whether in connection with its execution and delivery as of the
date hereof, or otherwise, so long as such Person Beneficially Owns any Shares
and the Agreement has not terminated.
(kk) "Shares" means shares of Covered Common Stock as adjusted
for stock splits, reverse stock splits and Common Stock dividends declared and
paid on account of Covered Common Stock and similar transactions.
(ll) "Subsidiary" means any Person of which a Shareholder or
Permitted Transferee shall now or hereafter own or be owned by, directly or
indirectly, through one or more Subsidiaries or otherwise, a Person holding
equity interests representing 100% of the voting securities of such Person.
(mm) "Target Investment Value per Share" means, as of the date
of any Put Notice or Call Notice, the amount to be paid to National Union or
its Permitted Transferee, if any, such that the internal rate of return
(calculated on an annual basis) on National Union's Initial Investment per
Share, taking into account Distributions, shall be equal to the Put Return or
Call Return, as the case may be.
(nn) "Trading Day" with respect to a securities exchange or
automated quotation system means a day on which such exchange or automated
quotation system is open and conducting business.
(oo) "Transfer" (including with correlative meanings, the terms
"transferring" and "transferred") means the direct or indirect sale,
assignment, transfer, grant of a participation or derivative interest in,
pledge or other disposition of any Shares (or solicitation of any offers to
buy or otherwise acquire, or take a pledge of, any Shares).
(pp) "ULLICO" has the meaning ascribed to it in the introductory
paragraph of this Agreement.
(qq) "Voting Security" means at any time shares of any class of
capital stock of the Company which are then entitled to vote generally in the
election of directors.
SECTION 1.02 Other Terms
Each of the following terms is defined in the Section set forth opposite such
term:
Term Section
Assignee 3.07
Call Closing 4.05
Call Notice 4.04
Call Option 4.01
Call Period 4.02
Call Postponement 4.07
Call Price 4.05
Call Purchaser 4.01
Call Seller 4.01
Co-Investor 2.03
Disposing Shareholder 6.01
NOLs 2.04
Offer 5.01
Offered Shares 5.01
Offered Shares Closing 5.03
Permitted Transferee 2.03
Proposed Transferee 5.01
Public Offerings 2.03
Purchasing Shareholder 5.02
Put Closing 3.06
Put Event Period 3.02
Put Notice 3.04
Put Option 3.01
Put Period 3.02
Put Price 3.05
Put Postponement 3.09
Put Purchaser 3.01
Put Seller 3.01
Selling Shareholder 5.01
Subscription Notice 7.07
ARTICLE II
Shares Subject to this Agreement; Transfers
SECTION 2.01 Shares Subject to this Agreement. Except as otherwise
provided in any Article of this Agreement, the Shares owned by any
Shareholder, Permitted Transferee or Co-Investor from time to time shall be
subject to this Agreement. Shares transferred by any Shareholder, Permitted
Transferee or Co-Investor shall not be entitled to the benefits of, or subject
to the obligations in, this Agreement unless otherwise expressly provided for
in this Agreement.
SECTION 2.02 Restrictions on Transfer.
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings. No
Shareholder, Permitted Transferee or Co-Investor may, directly or indirectly,
Transfer to third parties or any other shareholder of the Company, any Shares
(including, in the case of National Union or its Permitted Transferee, the
Put/Call Shares), in whole or in part, unless both (i) such Shares are
Transferred pursuant to Section 2.04 of this Agreement, and (ii) such Shares
are Transferred, directly or indirectly, in accordance with Articles III, IV,
V and VI of this Agreement to the extent such provisions are applicable. For
purposes hereof, an indirect Transfer shall include the Transfer of Control
of any Shareholder except where the indirect transferee is a Permitted
Transferee..
(a) A "Permitted Transferee" shall mean, as to any Shareholder,
(i) a Subsidiary of such Shareholder, (ii) any Person that owns, directly or
indirectly, 100% of the outstanding capital stock of such Shareholder or (iii)
a Subsidiary of a person described in clause (ii). A Shareholder shall be
permitted to Transfer up to 100% of its Shares to a Permitted Transferee
without first complying with any provisions of this Agreement other than
Sections 2.04 and 2.05. A Permitted Transferee shall be entitled to the
benefits of, and be subject to the obligations in, this Agreement. A Per-
mitted Transferee shall be required to execute and deliver a counterpart of
this Agreement and such other agreements as the Shareholders and the Company
shall reasonably request agreeing to be bound hereby and such Permitted
Transferee shall be deemed to be a Shareholder hereunder and a party to this
Agreement.
(b) A "Co-Investor" shall mean any Person (other than a Permit-
ted Transferee or a purchaser in a bona fide registered public offering) to
which any Shareholder, Permitted Transferee or Co-Investor Transfers Shares.
Notwithstanding anything herein to the contrary, (x) a Co-Investor shall have
no rights or obligations under Articles III, IV, V or VI of this Agreement
(except as otherwise provided in Sections 5.04 or 6.02), and (y) a Co-Investor
shall have no rights to nominate a director under Article VII but shall be
subject to the voting requirements of Section 7.02 thereof.
(c) A Shareholder shall be permitted to Transfer up to 100% of
its Shares (other than Put/Call Shares) to a bona fide purchaser through a
registered public offering pursuant to registration rights granted under the
Registration Rights Agreement (a "Public Offering") without first complying
with any provisions of this Agreement other than Sections 2.04 and 2.05 and
Articles V and VI. Persons who acquire their Shares in a Public Offering
shall not have any rights or obligations under this Agreement and shall not
become parties hereto.
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.
Notwithstanding any other provision of the Agreement to the contrary, to
preserve the Company's ability to fully utilize its net operating loss
carryforwards ("NOLs"), which each Shareholder deems to be a material
favorable attribute of its investment in the Equity Securities of the Company,
each of the Shareholders, their Permitted Transferees and the Co-Investors
agrees that it will not purchase or sell any Equity Securities of the Company
during the three-year period commencing on the Closing Date unless it meets
each of the following four conditions:.
(a) Such Shareholder, Permitted Transferee or Co-Investor shall
notify each of the Company and the other parties hereto in writing at least
fifteen (15) Business Days in advance of any proposed purchase or sale;
(b) Other than with respect to Put/Call Shares being Transferred
in accordance with Article III or IV of this Agreement, all the other
Shareholders shall be given the opportunity to participate in any proposed
purchase or sale in proportion to the amount of Equity Securities of the
Company held by such Shareholder as of the date of the notice referred to in
clause (a);
(c) Each Shareholder, Permitted Transferee or Co-Investor shall
consummate any proposed purchase or sale only to the extent that tax advisors
for the Company (or in the alternative, tax advisors retained by the selling
party reasonably acceptable to the Company and the Shareholders) have provided
the Company with written advice that the proposed purchase or sale will not
impair the ability of the Company to fully utilize its remaining NOLs; the
Company shall use commercially reasonable efforts to obtain tax advice
referred to in this clause (c) from its tax advisors and shall cooperate with
the reasonable requests for information from the Shareholders and their
respective tax advisors retained pursuant to this clause (c); and
(d) Each Permitted Transferee and Co-Investor shall execute and
deliver a counterpart of this Agreement or such other agreements as the
Shareholders and the Company shall reasonably request as to the existence and
enforceability of Sections 2.04 and 2.05 and such Permitted Transferee or Co-
Investor shall be deemed to be a Shareholder hereunder and a party to this
Agreement for such purposes.
In addition, each of the Shareholders and their respective Permitted
Transferees agrees that during the three year period commencing on the Closing
Date, it will - and it will use commercially reasonable efforts to cause any
director designated by it to - vote against any issuance or redemption of
Equity Securities by the Company if such issuance or redemption would impair
the ability of the Company to fully utilize its remaining NOLs unless such
issuance or redemption is authorized by Shareholders and their Permitted
Transferees holding at least two-thirds of the Shares then held by such
persons.
SECTION 2.05 Attempted Transfers in Violation of this Agreement. Any
attempt by a Shareholder, Permitted Transferee or Co-Investor to transfer
Equity Securities of the Company or any interest therein, directly or
indirectly, to any Person in violation of any provision of this Agreement
shall be void ab initio and the Company shall have no obligation to, and shall
refuse to, register such Equity Securities of the Company in the name of the
transferee and the transferee shall have no rights with respect to such Equity
Securities.
SECTION 2.06 Legend.
(a) In addition to any other legend that may be required pursu-
ant to the Securities Purchase Agreement or otherwise, each certificate for
the Shares that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER (INCLUDING RIGHTS OF FIRST REFUSAL AND TAG-ALONG
RIGHTS), ALL AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT DATED AS OF ______
___, 2000. THE HOLDER OF THIS CERTIFICATE MAY REQUEST A COPY OF THE
SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5) DAYS
AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE COMPANY."
(b) In addition to any other legend that may be required, each
certificate for the Put Shares that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT
TO PUT AND CALL OPTIONS AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT DATED AS
OF ________ ___, 2000 AND ARE NOT TRANSFERABLE EXCEPT AS PERMITTED UNDER THAT
AGREEMENT. THE HOLDER OF THIS CERTIFICATE MAY REQUEST A COPY OF THE
SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5) DAYS
AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE COMPANY."
(c) In addition to any other legend that may be required, each
certificate for Equity Securities that is issued to any Shareholder shall bear
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER IN ORDER TO PRESERVE THE COMPANY'S ABILITY
TO UTILIZE ITS NET OPERATING LOSS CARRYFORWARDS AS SET FORTH IN THE SHARE-
HOLDERS' AGREEMENT DATED AS OF ________ ___, 2000 AND ARE NOT TRANSFERABLE
EXCEPT AS PERMITTED UNDER THAT AGREEMENT. THE HOLDER OF THIS CERTIFICATE MAY
REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF
WHICH THE COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY
OF THE COMPANY."
(d) The same legends shall be placed on all certificates for
Shares and other Equity Securities, as the case may be, that are or become
subject to this Agreement. The failure to place legends on a certificate shall
not affect the application of this Agreement to the Shareholders.
(e) If any Shares shall cease to be subject to the restrictions
on Transfer under this Article II, the holder may request that the Company
remove the legend set forth in Section 2.06(a) or, if the Shares shall cease
to be Put/Call Shares, the holder may request the Company to remove the legend
set forth in Section 2.06(b), or, if Equity Securities shall cease to be
subject to the restrictions on Transfer set forth in Section 2.04, the holder
may request the Company to remove the legend set forth in Section 2.06(c)and
issue a new certificate evidencing such Equity Securities without the
applicable legend required to be endorsed thereon, if such legend is no longer
applicable.
ARTICLE III
Put Rights
SECTION 3.01 Put Option. Subject to Section 2.04 (other than subsection
2.04(b)), National Union and its Permitted Transferees, if any (collectively
the "Put Seller") shall have the right, at their collective discretion, to
cause TSC or its Assignee (as hereafter defined) (a "Put Purchaser") to
purchase (the "Put Option") all (but not less than all) of the Put/Call Shares
owned by the Put Seller as of the date notice is given pursuant to Section
3.03; provided, however, that during a Put Event Period, National Union may
elect to include within the term "Put/Call Shares" for purposes of this
Article III any other Shares purchased by National Union at Closing then owned
by it (including Shares issued on account of any subsequent Common Stock
dividends, stock splits, reverse stock splits or other similar transactions
relating thereto).
SECTION 3.02 Put Period. The "Put Period" shall be the period commenc-
ing on the third anniversary of the Closing and ending on the sixth anni-
versary of the Closing. In addition, a "Put Event Period" shall also commence
on the occurrence of a Put Event and shall continue for ninety (90) days
thereafter.
SECTION 3.03 Put Notice. The Put Seller shall exercise the Put Option
by delivery of written notice to the Put Purchaser during the Put Period or
Put Event Period, as the case may be. Upon receipt of a Put Notice in
accordance with the terms hereof, the Put Seller shall be obligated to sell
all of the Put/Call Shares then outstanding free and clear of all liens and
encumbrances created by it or its Affiliates (other than pursuant to this
Agreement) and the Put Purchaser shall be obligated to purchase all of such
Put/Call Shares at the applicable Put Price in accordance with, and subject
to, the terms hereof; provided, however, that the Put Option may not be exer-
cised if the Put Seller has breached the requirements of Article 2 hereof for
so long as such breach is continuing.
SECTION 3.04 Put Price. The "Put Price" shall be the product of the (a)
the number of Put/Call Shares outstanding subject to the Put Option,
multiplied by (b) the Target Investment Value per Share. At the Put Closing,
the Put Seller will distribute to the Put Purchaser the Distributable
Property-in-Kind.
SECTION 3.05 Put Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Put Option, shall take place at the principal
office of the Put Purchaser on a Business Day to be mutually agreed upon by
the Put Purchaser and Put Seller, which date shall be as soon as practicable
after receipt of the Put Notice (the "Put Closing"); provided, however, that
if the purchase of Put/Call Shares is subject to prior regulatory approval or
requires the determination of Fair Market Value, the parties will use their
reasonable best efforts to obtain the necessary regulatory approvals or
determination of Fair Market Value and Put Closing shall be postponed until
the expiration of five (5) Business Days after the later of (i) all such
regulatory approvals shall have been received or (ii) the determination of
Fair Market Value. At the Put Closing, the Put Seller shall deliver to the Put
Purchaser (A) the certificates representing the Put/Call Shares duly endorsed
or accompanied by stock powers executed in blank, in form and substance
satisfactory to the Put Purchaser, together with all other documents required
to be executed in connection with the sale of the Put/Call Shares and evidence
satisfactory to the Put Purchaser that the Put/Call Shares are being trans-
ferred free and clear of all liens and encumbrances created by the Put Seller
or its Affiliates, and (B) all Distributable Property-in-Kind (it being
understood that in no event shall a Put Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put Shares and Distributable Property-in-
Kind held by such Person, such title being free and clear of all liens and
encumbrances created by it or its Affiliates, and such Person's authority,
authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third
party (not including any governmental or regulatory consent or approval which
shall have been received)). At the Put Closing, the Put Purchaser shall pay
the Put Price by delivery of cash by wire transfer to the account of the Put
Seller. At the Put Closing, the Put Seller will transfer the Distributable
Property-in-Kind to the Put Purchaser.
SECTION 3.06 Assignment of Put. OptionTSC may assign its rights and
obligations to purchase the Put/Call Shares to an Affiliate, including RNT,
the Company or a Permitted Transferee (the "Assignee"), in which event all
references to TSC shall be deemed to refer to any Assignee and such Assignee
shall be deemed a party to this Agreement. Notwithstanding an assignment of
the Put Option by TSC or its Permitted Transferee, TSC shall remain liable
under this Article III. The rights and obligations of the Put Seller under
this Article III are not assignable without the consent of TSC.
SECTION 3.07 RNT Obligation Under Put Option. RNT shall be jointly and
severally liable for all obligations of TSC under this Article III.
SECTION 3.08 Put Postponement. Notwithstanding anything herein to the
contrary, the Put Seller may not exercise the Put Option if prohibited from
doing so under Article II or applicable law, provided the Put Purchaser and
Put Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 3.09 Exercise of Put Option Not a Transfer. Neither the exercise by
the Put Seller of the Put Option, nor the consummation of the transaction con-
templated thereby, shall constitute a Transfer that is subject to the right of
first refusal set forth in Article V or that is subject to the tag-along
rights set forth in Article VI.
ARTICLE IV
Call Rights
SECTION 4.01 Call Option. Subject to Section 2.04 (other than subsection
2.04(b)), TSC or its Assignee (in either case, the "Call Purchaser") has the
right, at its sole option, to cause National Union and its Permitted
Transferees, if any (collectively the "Call Seller") to sell (the "Call
Option") to TSC or its Assignee all (but not less than all) of the Put/Call
Shares held by the Call Seller as of the date notice is given pursuant to
Section 4.03.
SECTION 4.02 Call Period. The "Call Period" shall be the period
commencing on the third anniversary of the Closing and ending on the sixth
anniversary of the Closing. In addition, a Call Period shall also commence on
the occurrence of a Call Event and shall continue for ninety (90) days
thereafter.
SECTION 4.03 Call Notice. A Call Purchaser shall exercise its Call
Option by delivery of written notice to the Call Seller during the Call
Period. Upon receipt of a Call Notice in accordance with the terms hereof,
the Call Seller shall be obligated to sell all of its or their Put/Call Shares
free and clear of all liens and encumbrances created by it or its Affiliates
(other than pursuant to this Agreement) and the Call Purchaser shall be obli-
gated to purchase all of its or their Put/Call Shares at the Call Price in
accordance with, and subject to, the terms hereof.
SECTION 4.04 Call Price. The "Call Price" for the Put/Call Shares shall
be the product of the (a) the number of Put/Call Shares outstanding and
subject to the Call Option, multiplied by (b) the Target Investment Value per
Share. At the Call Closing, the Call Seller with distribute to the Call
Purchaser the Distributable Property-in-Kind.
SECTION 4.05 Call Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Call Option, shall take place at the principal
office of the Call Purchaser on a Business Day to be mutually agreed upon by
the Call Purchaser and the Call Seller, which date shall be as soon as
practicable days after receipt of the Call Notice (the "Call Closing");
provided, however, that if the purchase of Put/Call Shares is subject to
prior regulatory approval or requires the determination of Fair Market Value,
the parties will use their reasonable best efforts to obtain the necessary
regulatory approvals or determination of Fair Market Value and the Call
Closing shall be postponed until the expiration of five (5) Business Days
after the later of (i) all such regulatory approvals shall have been received
or (ii) the determination of Fair Market Value. At the Call Closing, the Call
Seller shall deliver to the Call Purchaser (A) the certificates representing
the Put/Call Shares duly endorsed or accompanied by stock powers executed in
blank, in form and substance satisfactory to the Call Purchaser, together with
all other documents required to be executed in connection with the sale of the
Put/Call Shares and evidence satisfactory to the Call Purchaser that the
Put/Call Shares are being transferred free and clear of all liens and
encumbrances created by the Call Seller or its Affiliates, and (B) all
Distributable Property-on-Kind (it being understood that in no event shall a
Call Seller be obligated to make any representations and warranties, or to
provide any indemnities, with respect to any matters other than title to the
Put/Call Shares and Distributable Property-in-Kind held by such Person, such
title being free and clear of all liens and encumbrances created by it or its
Affiliates, and such Person's authority, authorization and right to enter into
and consummate the sale without contravention of any law or agreement, and
without the need for any third party (not including any governmental or regu-
latory consent or approval which shall have been received)). At the Call
Closing, the Call Purchaser shall pay the Call Price by delivery of cash by
wire transfer to the account of the Call Seller. At the Call Closing, the
Call Seller will transfer the Distributable Property-in-Kind to the Call
Purchaser.
SECTION 4.06 Assignment of Call Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to any Permitted Transferee and,
with the consent of National Union to such transfer of the Call Option in
writing (which such consent shall be in the sole discretion of National Union
and may be granted or withheld for any reason or no reason), to any other
assignee.
SECTION 4.07 Call Postponement. Notwithstanding anything herein to the
contrary, the Call Purchaser may not exercise the Call Option if prohibited
from doing so under applicable law, provided the Call Purchaser and Call
Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 4.08 Exercise of Call Option Not a Transfer. Neither the exer-
cise by the Call Purchaser of the Call Option, nor the consummation of the
transaction contemplated thereby shall constitute a Transfer that is subject
to the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
ARTICLE V
Rights of First Refusal
SECTION 5.01 Right of First Refusal on Transfers.
(a) Only National Union, TSC and their respective Permitted
Transferees shall have any rights and obligations under this Article V (each a
"Selling Holder"). Subject to Sections 2.04, 5.04 and 5.05, if any Selling
Holder desires to Transfer all or any part of the ROFR Shares owned by it
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
the Selling Shareholder shall submit a written offer (the "Offer") to sell
such shares (the "Offered Shares") on terms and conditions, including price,
not less favorable than those on which the Selling Shareholder proposes to
sell such Offered Shares to the Proposed Transferee to TSC and its Permitted
Transferees (if the Selling Holder is National Union or its Permitted
Transferees) or to National Union and its Permitted Transferees (if the
Selling Holder is TSC, RNT or their Permitted Transferees); in either case,
the parties to whom the Selling Holders offer their shares are referred to in
this Article V as the "Offerees".
(b) The rights of TSC or its Permitted Transferees, on the one
hand, and National Union and its Permitted Transferees, on the other hand,
under this Article V shall be in addition to and not in substitution of their
respective rights under the Put Option or Call Option, as the case may be, in
their discretion.
(c) So long as the Put Option and Call Option shall remain in
effect, any Put/Call Shares not otherwise Transferred as permitted under
Section 2.03, Article V or Article VI shall continue to be subject to Articles
III and IV, as the case may be.
(d) The Offer shall disclose the identity of the Proposed
Transferee, the number of Offered Shares proposed to be sold, the total number
of ROFR Shares owned by the Selling Shareholder, the terms and conditions
(including price) of the proposed sale, and any other material facts relating
to the proposed sale. The Offer shall further state that the Offerees may
acquire, in accordance with the provisions of this Agreement, the Offered
Shares for the price and upon the other terms and conditions, including
deferred payment (if applicable), set forth therein.
SECTION 5.02 Notice of Intent to Purchase. If an Offeree desires to
purchase the Offered Shares offered to it, it shall communicate in writing its
election to purchase to the Selling Shareholder and each other Offeree within
fifteen (15) days of the date of the Offer (each party providing such notice,
a "Purchasing Shareholder") . A Purchasing Shareholder may also, but shall
not be required to, state that it is exercising an over-allotment right (the
"Over-Allotment Right") and the number of Shares it is willing to acquire
pursuant to such right; if any Offeree does not exercise its right of first
refusal pursuant to Section 5.01(a)(i), such Shares shall be allocated pro
rata among the Purchasing Shareholders exercising the Over-Allotment Right up
to the maximum amount stated in such Purchasing Shareholder's notices. Such
communication shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, binding and enforceable agreement for the sale and
purchase of the Offered Shares.
SECTION 5.03 Offered Shares Closing. The closing of the purchase and
sale of Offered Shares pursuant to the Offer, shall take place at the
principal office of the Selling Shareholder on a Business Day to be mutually
agreed to by the Selling Shareholders and the Purchasing Shareholders (the
"Offered Shares Closing"), provided that if the purchase of Offered Shares is
subject to prior regulatory approval, the parties will use their reasonable
best efforts to obtain the necessary regulatory approvals and the Offered
Shares Closing shall be postponed until the expiration of five (5) Business
Days after all such regulatory approvals shall have been received. At the
Offered Shares Closing, the Selling Shareholder shall deliver to the
Purchasing Shareholder(s) the certificates representing the Offered Shares
duly endorsed or accompanied by stock powers executed in blank, in form and
substance satisfactory to the Purchasing Shareholder(s), together with all
other documents required to be executed in connection with the sale of the
Offered Shares and evidence satisfactory to the Purchasing Shareholder(s) that
the Offered Shares are being transferred free and clear of all liens and
encumbrances created by the Selling Shareholder or its Affiliates (it being
understood that in no event shall a Selling Shareholder be obligated to make
any representations and warranties, or to provide any indemnities, with
respect to any matters other than title to the Offered Shares held by such
Person, such title being free and clear of all liens and encumbrances created
by it or its Affiliates, and such Person's authority, authorization and right
to enter into and consummate the sale without contravention of any law or
agreement, and without the need for any third party (not including any
governmental or regulatory consent or approval which shall have been
received)). At the Offered Shares Closing a Purchasing Shareholder shall pay
the purchase price for the Offered Shares in such amount and on such payment
terms as set forth in the Offer.
SECTION 5.04 Sale to Third Party. If the Shareholders do not purchase
all of the Offered Shares, the Offered Shares not so purchased may be sold by
the Selling Shareholder at any time within sixty (60) days after the date the
Offer was made. Any such sale shall be to the Proposed Transferee at not less
than the price and upon other terms and conditions not more favorable to the
Proposed Transferee than those specified in the Offer. If any Offered Shares
are not sold within the sixty (60)-day period or if the terms of the Offer
shall change, the Offered Shares shall be subject to renewed compliance with
the requirements of the right of first refusal pursuant to Section 5.01. Any
third party to whom Shares are sold shall become a Co-Investor and shall have
no rights or obligations under this Agreement except as provided in Sections
2.02(i), 2.03(b), 2.04 and 2.05, provided, however, that if (x) the Transfer
to a Co-Investor is a Transfer by National Union or its Permitted Transferee
of Put/Call Shares and if the price to be paid equals or exceeds the Target
Investment Value per Share (using the Call Rate as the discount rate) as of
the date set for payment, then the Put/Call Shares so Transferred shall
continue to be subject to the Call Option and the purchasing Co-Investor shall
execute such documents as are reasonably requested by TSC or its Assignee as
to the existence and enforceability of the Call Option, and (y) if the
Transfer to a Co-Investor is a Transfer by National Union or its Permitted
Transferee of Put/Call Shares and if RNT consents to such Transfer and the
continuation of the Put Option and the Call Option in writing (which such
consent shall be in the sole discretion of RNT and may be granted or withheld
for any reason or no reason), then the Put/Call Shares so Transferred shall
continue to be subject to the Put Option and the Call Option.
SECTION 5.05 Limitation as to National Union. The rights and obligations
set forth in this Article V shall not apply to any Shares purchased by
National Union other than the Put/Call Shares.
ARTICLE VI
Tag-Along Rights
SECTION 6.01 Tag-Along Option. Subject to Sections 2.04 and 6.03 of this
Agreement, if a Shareholder (a "Disposing Shareholder") (i) decides to sell
Shares and (ii) either (x) any one or more of the other Shareholders have not
exercised their right of first refusal as provided in Article V and purchased
the Offered Shares or (y) the Shares in question are not subject to Article V,
the Disposing Shareholder will cause the intended purchaser of such Disposing
Shareholder's Shares to afford to each party hereto that is a Shareholder for
purposes of this Article VI (each, a "Non-Exercising Shareholder"), at its
option, the opportunity to sell (and will require the prospective purchaser to
purchase) the Shares held by such remaining Shareholders in the same
proportion to the number of shares sought to be disposed of by the Disposing
Shareholder and Non-Exercising Shareholders and on the same terms and
conditions as those to be sold by the Disposing Shareholder, and for the same
consideration per share. The Disposing Shareholder's obligation to afford the
Non-Exercising Shareholders, or cause the Non-Exercising Shareholders to be
afforded, the opportunity and rights set forth in this Article VI, shall be
discharged if the Non-Exercising Shareholders are given written notice which
allows such Shareholder thirty (30) days to elect to avail themselves of such
rights by written notice to the Disposing Shareholder. If any Non-Exercising
Shareholder elects to not participate or otherwise does not affirmatively
respond within such thirty (30) day period, the Disposing Shareholders and
such Non-Exercising Shareholders who have made an affirmative election to sell
their Shares may proceed with the sale, without regard to the application of
this Article VI to the non-electing remaining Shareholder(s).
SECTION 6.02 Sale to Third Party. Any such sales shall be at not less
than the price and upon other terms and conditions not more favorable than
those specified in the Offer. If any such Shares are not sold within a sixty
(60)-day period from the date of the Offer, or if the terms of the Offer shall
change, the Shares shall be subject to the requirements of the tag-along
right pursuant to Section 6.01. Any third party to whom Shares are sold shall
become a Co-Investor and shall have no rights or obligations hereunder except
as provided in Sections 2.02(i), 2.03(b), 2.04 and 2.05, provided, however,
that if the sale to a third party is a sale by National Union or its Permitted
Transferee of Put/Call Shares and if the price per share to be paid exceeds
the Target Investment Value per Share (using the Call Rate as the discount
rate), then the Put/Call Shares so Transferred shall continue to be subject to
the Call Option and the purchasing Co-Investor shall execute such documents as
are reasonably requested by TSC or its Assignee as to the existence and
enforceability of the Call Option.
SECTION 6.03 Limitation as to National Union. The rights and obligations
set forth in this Article VI shall not apply to any Shares purchased by
National Union other than the Put/Call Shares.
ARTICLE VII
The Company's Board Of Directors; Publicity
SECTION 7.01 Nominees.
(a) Each of the Shareholders (together with its Permitted
Transferees) identified below shall have the right to designate one person to
be elected to the Board of Directors of the Company, which designee the
Company shall nominate for director in accordance with its Charter and By-Laws
as follows:
(i) National Union and its Permitted Transferees, if any,
shall collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall appoint
such nominee to fill a vacancy on the Board of Directors at Closing.
Thereafter, the Board of Directors of the Company shall nominate the person
nominated, from time to time, by National Union or its Permitted Transferee as
a director of the Company for reelection as a Class __ director and such
nominee shall be submitted for election by shareholders as soon as members of
such Class stand for election, and each time members of such Class stand for
election thereafter subject to the terms hereof; the right to designate a
director pursuant to this Section 7.01(a)(i) shall terminate at such time as
National Union and its Permitted Transferees collectively cease to hold at
least 25% of the Shares National Union acquired at Closing; and
(ii) O&G and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the Board
of Directors and the Board of Directors of the Company shall appoint such
nominee to fill a vacancy on the Board of Directors at Closing. Thereafter,
the Board of Directors of the Company shall nominate the person nominated,
from time to time, by O&G or its Permitted Transferee as a director of the
Company for reelection as a Class __ director and shall be submitted to the
Board of Directors of the Company; the person nominated by O&G or its
Permitted Transferee shall be nominated by the Board of Directors of the
Company as a Class__ director and such nominee shall be submitted for election
by shareholders as soon as members of such Class stand for election (or, in
case there is an earlier vacancy among the Company's directors of any Class,
and each time members of such Class stand for election thereafter subject to
the terms hereof; the right to designate a director pursuant to this Section
7.01(a)(ii) shall terminate at such time as O&G and its Permitted Transferees
collectively cease to hold at least 25% of the Shares O&G acquired at Closing;
(iii) TSC and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the Board
of Directors of the Company; the parties hereto agree and acknowledge that RNT
shall be deemed the designee of TSC; RNT or such other person as may be
designated by TSC shall be submitted for election by shareholders as part of
the management slate each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a director
pursuant to this Section 7.01(a)(iii) shall terminate at such time as TSC and
its Permitted Transferees collectively cease to hold at least 25% of the
Shares they acquired at Closing; and
(iv) PB Capital and its Permitted Transferees, if any,
shall collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and acknowledge
that Douglas McCarron ("McCarron") shall be deemed the designee of PB Capital
as of the date of this Agreement; McCarron or such other person as may be
designated by PB Capital shall be submitted for election by shareholders as
part of the management slate each time members of such Class stand for
election thereafter subject to the terms hereof; the right to designate a
director pursuant to this Section 7.01(a)(iv) shall terminate at such time as
PB Capital and its Permitted Transferees collectively cease to hold at least
5% of the outstanding shares of Common Stock of the Company; and
(v) ULLICO and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the Board
of Directors and the Board of Directors of the Company shall appoint such
nominee to fill a vacancy on the Board of Directors at Closing. Thereafter,
the Board of Directors of the Company shall nominate the person nominated,
from time to time, by ULLICO and its Permitted Transferees as a director of
the Company for reelection as a Class __ director and such nominee shall be
submitted for election by shareholders as soon as members of such Class stand
for election, and each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a director
pursuant to this Section 7.01(a)(v) shall terminate at such time as ULLICO and
its Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company.
(b) The Company shall use its best efforts to cause each nominee
described in clause (a) of this Section 7.01 to be nominated to the Board by
the directors of the Company as part of the management slate and to be
submitted to the shareholders of the Company for election at each annual or
special meeting of the shareholders convened for that purpose so long as each
of them has the right to nominate a director in accordance with this Section
7.01.
SECTION 7.02 Voting for Election of Directors. Each of the Shareholders,
their respective Permitted Transferees and Co-Investors agree to vote all
shares of capital stock of the Company then owned by it to elect to the Board
of Directors of the Company any person entitled to be nominated by any of the
other Shareholders (or their respective Permitted Transferees) pursuant to
Section 7.01.
SECTION 7.03 Vacancy; Removal. Continuation as Director. Each Person who
nominates a director of the Company pursuant to Section 7.01 shall have the
right to cause that person to resign as a director of the Company. Any vacancy
on the Board of Directors of the Company created by the resignation, removal,
incapacity or death of any person nominated under this Article VII shall be
filled by another person nominated by the party who nominated the director
creating such vacancy or by such party's successors and assigns. The
Shareholders agree to vote their respective shares of Common Stock in
accordance with such new designation, and any such vacancy shall not be filed
in the absence of a new nomination in accordance with the foregoing sentence.
SECTON 7.04 Upon the occurrence of any event that results in a
Shareholder no longer being entitled to nominate a director under Section
7.01, the Person so nominated shall continue as a director of the Company
until his successor is nominated, elected and qualifies.
SECTION 7.05 Publicity.
To the extent that any of the Company or any Shareholder intends to issue any
press release or make any similar public announcement or communication
regarding the execution or performance of this Agreement or the other
Transaction Documents, the transactions contemplated hereby and thereby, and
the ongoing business relationship between the parties, which release,
announcement or disclosure mentions any of such parties, the party making the
disclosure shall consult with each of the parties so named in such disclosure;
provided, however, that no party shall be restrained, after consultation with
the other parties, to the extent such consultation is feasible, from making
such disclosure as it shall be required to make by applicable law or by
applicable regulations of any regulatory body or securities exchange.
SECTION 7.06 Observer Rights for Shareholder Designee. The Company
shall, for so long as PB Capital and its Affiliates own or control at least
2.5% of the outstanding shares of Common Stock, permit one (1) individual
designated by PB Capital and acceptable to the Company to attend and observe
meetings of the Board. The Company shall, for so long as ULLICO and its
Affiliates own or control at least 2.5% of the outstanding shares of Common
Stock, permit one (1) individual designated by ULLICO and acceptable to the
Company to attend and observe meetings of the Board. Each designee described
in the preceding two sentences shall have the right to receive timely notices
of each meeting of the Board of Directors and all written information provided
by the Company to the Board. Such designee shall have no right to vote on any
matter presented to the Board, but otherwise shall have all rights of a
Director, including: (a) the right to examine books and records of the
Company; (b) the right to review and participate in all discussions of the
Board including, without limitation, capital or equity programs; (c) the right
to receive, upon request, any information relating to the Company, and to any
Affiliates thereof; and (d) the right to meet on a regular basis with the
management of the Company, or any Affiliates thereof; provided that any such
designee shall agree to be bound by all policies relating to confidentiality
and material non-public information which are applicable to the Directors and
senior executive officers of the Company.
SECTION 7.07 Subscription Rights.
(a) If the Board of Directors of the Company shall authorize the
issuance of New Securities, then, prior to each such issuance of New
Securities, the Company shall offer to each Shareholder and its Permitted
Transferees a Pro Rata Share of such New Securities.
(b) Any offer of New Securities made to any Shareholder or
Permitted Transferee under this Section 7.07 shall be made by notice in
writing (the "Subscription Notice") at least ten (10) Business Days prior to
the date on which the meeting of the Board is held to authorize the issuance
of such New Securities. The Subscription Notice shall set forth (i) the
number of New Securities proposed to be issued and the terms of such New
Securities, (ii) the consideration (or manner of determining the
consideration), if any, for which such New Securities are proposed to be
issued and the terms of payment, (iii) the number of New Securities offered to
each Shareholder and Permitted Transferee in compliance with the provisions of
this Section 7.07 and (iv) the proposed date of issuance of such New
Securities. Not later than twenty (20) Business Days after its receipt of a
Subscription Notice, each Shareholder and Permitted Transferee shall notify
the Company in writing whether it elects to purchase all or any portion of the
New Securities offered to it pursuant to the Subscription Notice. If a
Shareholder or Permitted Transferee shall elect to purchase any such New
Securities, the New Securities which it shall have elected to purchase shall
be issued and sold to such person by the Company at the same time and on the
same terms and conditions as the New Securities are issued and sold to third
parties. If, for any reason, the issuance of New Securities to third parties
is not consummated, the right of the Shareholders and Permitted Transferees to
their respective Pro Rata Shares of such issuance shall lapse, subject to
their ongoing subscription right with respect to issuances of New Securities
at later dates or times.
(c) The Company represents and covenants to each Shareholder and
Permitted Transferee that (i) upon issuance, all the shares of New Securities
sold to such person pursuant to this Section 7.07 shall be duly authorized,
validly issued, fully paid and nonassessable and will be approved (if
outstanding securities of the Company of the same type are at the time already
approved) for listing on the American Stock Exchange or for quotation or
listing on the principal trading market for the securities of the Company at
the time of issuance, (ii) upon delivery of such shares, they shall be free
and clear of all claims, Liens, encumbrances, security interests and charges
of any nature and shall not be subject to any preemptive right of any
stockholder of the Company and (iii) in connection with any such issuance, the
Company shall take such actions as are specified in Section 3.01(q) of the
Securities Purchase Agreement with respect to such shares.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Injunctive Relief. The parties hereto acknowledge and agree
that it will be impossible to measure the damages that would be suffered if
any party fails to comply with the provisions of this Agreement that it is
required to comply with and, in the event of any such failure, the non-
breaching parties will have the right to obtain specific performance of the
breaching party's obligations under this Agreement and to obtain immediate
injunctive relief. These rights shall be in addition to, and not in
substitution of, any other rights that any non-breaching party may have in law
or in equity.
SECTION 8.02 Entire Agreement. Each party expressly acknowledges and
agrees that this Agreement is the final expression of the parties agreement,
and supercede all prior and contemporaneous agreements and understandings,
both oral and written, among the parties, with respect to the subject matter
hereof. Except as set forth in this Agreement, the Securities Purchase
Agreement and the Registration Rights Agreement, the parties hereto
acknowledge that they are not parties to, and have no knowledge of, any
agreements or understandings, both oral and written, to act in concert or as a
group (including, without limitation, as a group within the meaning of
Section13 (d) of the Exchange Act), or otherwise act together, with respect to
the Company or its securities.
SECTION 8.03 Binding Effect; Benefit. This Agreement shall inure to the
benefit and be binding upon the parties hereto and their Permitted
Transferees, Co-Investors and assignees to the extent set forth in this
Agreement; and, in the case of a natural person, upon his successors, assigns,
heirs, legatees, distributees, estates, executors, administrators, personal
representatives and other legal representatives. Nothing in this Agreement,
expressed or implied, is intended to confer on any Person other than the par-
ties hereto and their Permitted Transferees, Co-Investors and assignees; and,
in the case of a natural person, upon his successors, assigns, heirs,
legatees, distributees, estates, executors, administrators, personal
representatives and other legal representatives, any rights, remedies,
obligations or liabilities under or by reason of this Agreement. Nothing in
this Agreement, expressed or implied, shall confer on any party or Permitted
Transferee, Co-Investor and assignee; and, in the case of a natural person,
upon his successors, assigns, heirs, legatees, distributees, estates,
executors, administrators, personal representatives and other legal
representatives, any greater rights, remedies, obligations or liabilities than
as set forth in this Agreement.
SECTION 8.04 Assignability. Except as set forth in this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any party hereto or their
Permitted Transferees or assignees.
SECTION 8.05 Amendment; Waiver; Termination. No provision of this Agree-
ment may be waived except by an instrument in writing signed by the party
against whom the waiver is to be effective. No provision of this Agreement
may be amended or modified except by an instrument in writing signed by all of
the parties who would have any rights or obligations under the relevant
provision the Agreement. This Agreement shall terminate on the earlier of (i)
the date that National Union or its Permitted Transferee shall no longer
Beneficially Own any Put/Call Shares, or (ii) the sixth anniversary of the
Closing.
SECTION 8.06 Notices. All notices, consents, requests, instructions, ap-
provals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
the Company: Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Telecopy No.: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 01209
Attn: Richard A. Soden, Esq.
Telecopy No.: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald N. Tutor
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: Christopher H. Lee
Chris Saxman
Facsimile: (212) 458-2250
With a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John P. Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia
Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
Washington, D.C. 2001
Attn: Robert Kennedy
Facsimile: (202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: Alan J. Barton
Facsimile: (213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 8.07 Fees and Expenses. Each party shall pay its own fees and
expenses (including fees, expenses and disbursements of counsel) in connection
with this Agreement and the performance of each parties rights, remedies and
obligations hereunder.
SECTION 8.08 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 8.09 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
SECTION 8.10 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the
internal laws of the State of New York. Each of the parties hereto
irrevocably submits to the personal exclusive jurisdiction of the United
States District Court for the Southern District of New York for the purposes
of any suit, action or other proceeding arising out of this Agreement or any
transaction contemplated hereby (and, to the extent permitted under applicable
rules of procedure, agrees not to commence any action, suit or proceeding
relating hereto except in such court). Each of the parties further agree that
service of any process, summons, notice or document hand delivered or sent by
registered mail to such party's respective address set forth in Section 8.06
will be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction as
set forth in the immediately preceding sentence. Each of the parties hereto
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the United States District Court for the
Southern District of New York, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in such court that any
such action, suit or proceeding brought in such court has been brought in an
inconvenient forum.
SECTION 8.11 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential, punitive or exemplary damages in respect of this
Agreement under any circumstances or for any reason. Consequential damages
are, without limitation, lost profits, lost revenue and the like but do not
include the actual costs incurred in obtaining substitute performance where
there has been a failure to perform an obligation under any provision of this
Agreement.
SECTION 8.12 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 8.13 Amendments to Laws. Any reference to a section, form, rule
or regulation of the Securities Act, the Exchange Act or the Code, includes
any successor section, form, rule, regulation or law.
SECTION 8.14 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the
parties hereto and their respective successors and permitted assigns, any
benefit, right or remedies under or by reason of this Agreement.
SECTION 8.15 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not
be construed for or against any party hereto.
SECTION 8.16 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement,
with the opportunity to seek advice as to its legal rights from such counsel.
Each party further represents that it is being independently advised as to
the tax consequences of the transactions contemplated by this Agreement and is
not relying on any representation or statements made by any other party as to
such tax consequences.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by himself or its authorized officer as of the day and year
first above written.
PERINI CORPORATION
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
TUTOR-SALIBA CORPORATION
By: _________________________________________
Name: Ronald N. Tutor
Title: President and Chief Executive
RONALD N. TUTOR
_____________________________________________
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
O&G INDUSTRIES, INC.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By: _____________________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By: _______________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its investment advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By: _______________________________
Name: Murray A. Indick
Title: Partner, General Counsel
and Secretary
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
