UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Perini Corporation
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(Name of Issuer)
Common Stock, Par Value $1.00 Per Share
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(Title and Class of Securities)
71383910
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(CUSIP Number)
Raymond R. Oneglia Timothy L. Largay
Vice Chairman With a Murtha, Cullina, Richter and Pinney LLP
O & G Industries Copy City Place I
112 Wall Street to: 185 Asylum Street
Torrington, CT 06790 Hartford, CT 06103
(860)496-4298 (860)240-6000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 5, 2000
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided for 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).
(Continued on following page(s))
The Exhibit Index is located on page 12.
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SCHEDULE 13D
CUSIP No. 713839108 Page 2 of 7 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (entities only)
O&G Industries, Inc. 06-0479981
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) [ ]
(b) [X]
3 SEC USE ONLY
4 SOURCE OF FUNDS (See instructions)
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS OR ACTIONS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Connecticut
7 SOLE VOTING POWER
NUMBER OF
SHARES 150,000(1)
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 0
PERSON
WITH 9 SOLE DISPOSITIVE POWER
150,000(1)
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
150,000(1)
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.6%
14 TYPE OF REPORTING PERSON (See instructions)
CO
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(1) See discussion below.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
CUSIP No. 713839108 Page 3 of 7 Pages
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Item 1. Security and Issuer.
This statement on Schedule 13D relates to the common stock, par value
$1.00 per share ("Common Stock"), of Perini Corporation, a Massachusetts
corporation (the "Issuer"), whose principal executive offices are located at 73
Mt. Wayte Avenue, Framingham, MA 01701.
This statement on Schedule 13D is filed by O&G Industries, Inc., a
Connecticut corporation (referred to herein as "O&G" or the "Reporting Person").
As described more fully in Item 4 below, the Reporting Person is filing this
statement pursuant to Rule 13d-1(a) under the Securities Exchange Act of 1934,
as amended, because it executed an agreement on February 5, 2000 to acquire
2,352,941 shares of Common Stock of the Issuer for a total purchase price of $10
million (the "Securities Purchase Agreement"). If the transactions contemplated
by the Securities Purchase Agreement are consummated, O&G will beneficially own
11.1% of the Issuer's then-issued and outstanding Common Stock.
National Union Fire Insurance Company of Pittsburgh, PA ("National
Union") and Tutor-Saliba Corporation ("Tutor-Saliba") have also executed the
Securities Purchase Agreement and agreed to acquire an additional $20 million
and $10 million, respectively, worth of the Issuer's Common Stock. The Reporting
Person disclaims beneficial ownership of the shares of the Issuer's Common Stock
currently owned, or to be acquired in the transactions contemplated by the
Securities Purchase Agreement, by National Union and Tutor-Saliba.
Item 2. Identity and Background.
(a)-(c) and (f). This statement on Schedule 13D is filed on behalf of
O&G, which has its principal executive offices located at 112 Wall Street,
Torrington, CT 06790. O&G is a diversified building materials and construction
services company which is engaged in building general contracting, construction
management and design/build services; heavy highway/civil and environmental
remediation/construction services; and the manufacture and sale of building
materials including redi-mix concrete, bituminous paving materials, quarried
stone, sand and gravel and masonry products.
The name, business address, principal occupation, address of employment
and citizenship of each executive officer, director and controlling person of
O&G are set forth in Schedule A attached hereto, which is hereby incorporated
herein to this Item 2 by reference.
(d) Neither O&G nor, to the best of its knowledge, any executive
officer, director or controlling person of O&G named in Schedule A has, during
the last five years, been convicted in any criminal proceeding, excluding
traffic violations or similar misdemeanors.
(e) Neither O&G nor, to the best of its knowledge, any executive
officer, director or controlling person of O&G named in Schedule A has, during
the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which it was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
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CUSIP No. 713839108 Page 4 of 7 Pages
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Item 3. Source and Amount of Funds or other Consideration.
As of the date of this statement, O&G owns 150,000 shares of the
Issuer's Common Stock. Upon the closing of the Securities Purchase Agreement,
O&G will purchase an additional 2,352,941 shares of the Issuer's Common Stock.
The funds to be used for this purchase will consist solely of O&G's working
capital. No leverage or borrowed funds will be used to purchase any of the
shares of the Issuer's Common Stock which are the subject of this Schedule 13D.
Item 4. Purpose of Transaction.
The Common Stock has been acquired by the Reporting Person for
investment purposes. Subject to certain restrictions set forth in a
Shareholders Agreement (described below in Item 6), the Reporting Person may
sell some or all of the Common Stock, either in the open market or in private
transactions depending on its evaluation of the Issuer's business, prospects
and financial condition, the market for the Common Stock, other opportunities
available to the Reporting Person, prospects for the Reporting Person's own
businesses, general economic conditions and stock market conditions and further
developments.
As described below in Item 6, pursuant to the Shareholders Agreement,
for so long as it maintains certain levels of ownership of Common Stock, O&G
will have the right to nominate one member of the Issuer's Board of Directors.
In addition, National Union, Tutor-Saliba and two of the Exchanging Holders (as
defined below in Item 6) will also have the right to designate one director
each.
Certain other arrangements with respect to corporate governance of the
Issuer are set forth in the Securities Purchase Agreement, which is attached as
Exhibit 1 to this Schedule 13D, and the Shareholders Agreement, which is
attached as Exhibit 3 to this Schedule 13D, each of which is incorporated herein
by reference. Other than as described above or as set forth in the Securities
Purchase Agreement or the Shareholders Agreement, the Reporting Person has no
present plans or proposals that relate to or would result in any of the actions
or consequences described in paragraphs (a)-(j) of Item 4 of Schedule 13D, or
any agreement regarding such matters, although O&G may in the future take
actions which would have such consequences.
Item 5. Interest in Securities of the Issuer.
(a) As of the date of this statement, O&G owns 150,000 shares of the
Issuer's Common Stock. Upon the Closing of the Securities Purchase Agreement,
O&G will own a total of 2,502,941 shares of the Issuer's Common Stock. Based on
information contained in the Issuer's Quarterly Report on Form 10-Q for the
period ended September 30, 1999 upon the closing of the Securities Purchase
Agreement, O&G will own approximately 11.1% of the then-issued and outstanding
shares of the Issuer's Common Stock.
(b) Upon the closing of the Securities Purchase Agreement, O&G will
have the sole power to vote, or direct the vote of, and the sole power to
dispose, of or direct the disposition of, 2,502,941 shares of the Issuer's
Common Stock.
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CUSIP No. 713839108 Page 5 of 7 Pages
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(c) Except as set forth herein, O&G has not effected any transactions
in the Issuer's Common Stock during the past sixty (60) days.
(d) Upon the closing of the Securities Purchase Agreement, O&G will
have the sole and exclusive right to receive, or the power to direct the receipt
of, dividends from, or the proceeds from the sale of, 2,502,941 shares of the
Issuer's Common Stock.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to the Issuer.
In connection with the closing of the Securities Purchase Agreement,
O&G, Tutor-Saliba, Ronald N. Tutor ("RNT") who serves as the president and chief
executive officer of Tutor-Saliba and who owns or controls 100% of its voting
stock, National Union, and the Issuer will execute and become parties to a
shareholders agreement (the "Shareholders Agreement") and a registration rights
agreement (the "Registration Rights Agreement").
The Shareholders Agreement will give National Union the right, under
certain circumstances, to put some or all of the shares it will purchase to
Tutor-Saliba and/or RNT for a price specified in the Shareholders Agreement.
Similarly, it will give Tutor-Saliba and RNT the right, under certain
circumstances, to call such shares from National Union for a price specified in
the Shareholders Agreement. The Shareholders Agreement will prohibit O&G,
Tutor-Saliba, National Union, their transferees, and the holders of the Issuer's
Series B Preferred Stock that are exchanging their preferred shares for Common
Stock (the "Exchanging Holders") from transferring any shares of Common Stock
for three years following the execution of the Shareholders Agreement if such
transfer would result in a limitation being placed on the deductibility of the
Issuer's net operating loss carryforwards under Section 382 of the Internal
Revenue Code. O&G, Tutor-Saliba, National Union, and the Exchanging Holders will
similarly agree to vote their shares against any stock issuance or redemption by
the Issuer if that issuance or redemption would result in such a limitation and
to use reasonable efforts to cause any directors designated by them to oppose
any such transaction. The Shareholders Agreement will give each of Tutor-Saliba
and National Union a right of first refusal on dispositions of Issuer stock by
each other, and will give O&G, Tutor-Saliba, National Union, and the Exchanging
Holders rights to sell when any other party to the Shareholders Agreement sells
shares of the Issuer's Common Stock.
Lastly, the Shareholders Agreement will give to each of O&G,
Tutor-Saliba, National Union, and two of the Exchanging Holders the right to
designate one director each to be nominated to the board of the Issuer as part
of the management slate. The Issuer will agree to use best efforts to cause such
persons to be elected as directors and each of O&G, Tutor-Saliba, National
Union, and the Exchanging Holders will agree to vote their shares of Common
Stock in favor of each others' nominees. These directors may be added to replace
members of the current Board of Directors. Lastly, the Shareholders Agreement
will give O&G, Tutor-Saliba, National Union, and the Exchanging Holders
pre-emptive rights with respect to certain issuances of securities by the
Issuer. The Shareholders Agreement will expire on the sixth anniversary of the
closing of the Securities Purchase Agreement.
<PAGE>
CUSIP No. 713839108 Page 6 of 7 Pages
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The Registration Rights Agreement will grant to O&G, Tutor-Saliba,
National Union, and the Exchanging Holders certain shelf, demand and
"piggy-back" registration rights in respect of the shares of Issuer owned by
them immediately following consummation of the Securities Purchase Agreement.
Except as outlined above in this Item 6, there is no formal agreement,
written or oral, regarding the acquisition, disposition or voting of the
securities of the Issuer between the Reporting Person and any other person.
However, O&G anticipates that it may consult with Tutor-Saliba, National Union,
and/or the Exchanging Holders with regard to the management and business of the
Issuer from time to time in the future.
Item 7. Material to be Filed as Exhibits.
A copy of the Securities Purchase Agreement is attached hereto as
Exhibit 1. A copy of the form of the Registration Rights Agreement to be
executed in connection with the consummation of the transactions contemplated by
the Securities Purchase Agreement is attached hereto as Exhibit 2. A copy of the
form of the Shareholders Agreement to be executed in connection with the
consummation of the transactions contemplated by the Securities Purchase
Agreement is attached hereto as Exhibit 3. Each of Exhibits 1, 2 and 3 are
incorporated by reference into this Item 7.
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CUSIP No. 713839108 Page 7 of 7 Pages
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
hereby certify that the information set forth in this statement is true,
complete and correct.
O&G INDUSTRIES, INC.
By: /s/ Raymond R. Oneglia
----------------------
Name: Raymond R. Oneglia
Title: Vice Chairman
Date: February 15, 2000
<PAGE>
SCHEDULE A
Item 2: Identity and Background of Directors, Executive Officers and
Controlling Persons of O&G Industries, Inc.
1. (a) Raymond R. Oneglia
(Director and Vice Chairman)
(b-c) Present Principal Occupation and Business Address:
Vice Chairman
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
2. (a) Gregory S. Oneglia
(Director and Vice Chairman)
(b-c) Present Principal Occupation and Business Address:
Vice Chairman
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
3. (a) Robert G. Oneglia
(Director and Vice Chairman)
(b-c) Present Principal Occupation and Business Address:
Vice Chairman
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
4. (a) David M. Oneglia
(Director and President)
(b-c) Present Principal Occupation and Residential Address:
President
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
<PAGE>
5. (a) Kenneth M. Merz
(Secretary)
(b-c) Present Principal Occupation and Business Address:
Secretary
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
6. (a) Richard J. Hall
(Chief Financial Officer)
(b-c) Present Principal Occupation and Business Address:
Chief Financial Officer
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
7. (a) Ernest J. Torizzo
(Executive Vice President)
(b-c) Present Principal Occupation and Business Address:
Executive Vice President
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
8. (a) Maurice Hoben
(Vice President)
(b-c) Present Principal Occupation and Business Address:
Vice President
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
9. (a) John R. Leventry
(Vice President)
(b-c) Present Principal Occupation and Business Address:
Vice President
O&G Industries, Inc.
112 Wall Street
Torrington, CT 06790
(f) Citizenship:
U.S.A.
<PAGE>
EXHIBIT INDEX
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1 Securities Purchase Agreement, dated as February 5, 2000 12
2 Form of Registration Rights Agreement (Exhibit
6.02(c)(i) to the Securities Purchase Agreement) 66
3 Form of Shareholders Agreement (Exhibit 6.02(c)(ii)
to the Securities Purchase Agreement) 97
<PAGE>
EXHIBIT 1
SECURITIES PURCHASE AGREEMENT
DATED AS OF FEBRUARY 5, 2000
AMONG
PERINI CORPORATION,
AND
TUTOR-SALIBA CORPORATION
AND
O&G INDUSTRIES, INC.
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
================================================================================
<PAGE>
Table of Contents
Page
ARTICLE I Definitions..........................................................1
ARTICLE II Purchase and Sale of Shares.........................................6
SECTION 2.01 Purchase and Sale of Shares....................6
SECTION 2.02 Time and Place of the Closing..................7
SECTION 2.03 Transactions at the Closing....................7
ARTICLE III Representations and Warranties.....................................7
SECTION 3.01 Representations and Warranties of the Company..7
SECTION 3.02 Representations and Warranties of TSC.........21
SECTION 3.03 Representations and Warranties of National
Union.........................................23
SECTION 3.04 Representations and Warranties of O&G.........25
ARTICLE IV [Intentionally Omitted]............................................26
ARTICLE V Covenants and Additional Agreements.................................26
SECTION 5.01 Pre-Closing Activities........................26
SECTION 5.02 Covenants of the Company......................27
SECTION 5.03 HSR...........................................28
SECTION 5.04 [Intentionally Omitted].......................28
SECTION 5.05 Stockholder Approvals; Proxy Statement........28
SECTION 5.06 Stock Exchange Listing........................29
SECTION 5.07 Transaction Proposals.........................30
SECTION 5.08 Access and Information........................30
SECTION 5.09 Confidentiality and Publicity.................32
SECTION 5.10 Restrictions..................................33
SECTION 5.11 Further Assurances............................34
SECTION 5.12 Directors'and Officers'Indemnification and
Insurance.....................................34
SECTION 5.13 Shareholders Agreement........................34
ARTICLE VI Conditions Precedent...............................................35
SECTION 6.01 Conditions to Each Party's Obligations........35
SECTION 6.02 Conditions to the Obligations of the Company..35
SECTION 6.03 Conditions to the Obligations of Purchasers...37
ARTICLE VII Termination.......................................................41
SECTION 7.01 Termination...................................42
SECTION 7.02 Effect of Termination.........................44
SECTION 7.03 Termination by One Purchaser..................44
ARTICLE VIII Indemnification..................................................44
SECTION 8.01 Indemnification of Purchasers.................44
SECTION 8.02 Indemnification Procedures....................45
SECTION 8.03 Survival of Representations, Warranties
and Covenants.................................45
ARTICLE IX Miscellaneous......................................................46
SECTION 9.01 Severability..................................46
SECTION 9.02 Specific Enforcement..........................46
SECTION 9.03 Entire Agreement..............................46
SECTION 9.04 Counterparts..................................46
SECTION 9.05 Notices.......................................46
SECTION 9.06 Amendments....................................48
SECTION 9.07 Successors and Assigns........................48
SECTION 9.08 Expenses and Remedies.........................49
SECTION 9.09 Transfer of Shares............................50
SECTION 9.10 Governing Law; Consent to Jurisdiction........50
SECTION 9.11 Third Party Beneficiaries.....................50
SECTION 9.12 Mutual Drafting...............................51
SECTION 9.13 Further Representations.......................51
<PAGE>
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of February 5, 2000, is entered into between Tutor-Saliba Corporation, a
California corporation ("TSC"), O&G Industries, Inc., a Connecticut corporation
("O&G"), and the National Union Fire Insurance Company of Pittsburgh, PA, a
Pennsylvania corporation ("National Union") and, collectively with TSC and O&G,
the "Purchasers"), and Perini Corporation, a Massachusetts corporation (the
"Company").
R E C I T A L S
WHEREAS, the Company is engaged primarily in the construction
business; and
WHEREAS, Purchasers propose to invest $40 million in the
Company in order to mitigate the continuing effects of the Company's negative
net worth on its business and financial condition; and
WHEREAS, the Company wishes to sell, and Purchasers wish to
purchase (severally but not jointly), an aggregate of 9,411,765 newly issued
shares of common stock, par value $1.00, of the Company (the "Common Stock"),
each for the consideration and upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, the parties agree as follows:
ARTICLE I
Definitions
The terms defined in this Article I, whenever used in this
Agreement, shall have the following meanings for all purposes of this Agreement:
1.01 "Affiliate" has the meaning set forth in Rule 12b-2 under
the Exchange Act.
1.02 "Articles of Organization" means the Articles of
Organization of the Company as filed with the Office of the Secretary
of State for the Commonwealth of Massachusetts, as amended, restated
or supplemented from time to time.
1.03 "Balance Sheet" is defined in Section 3.01(g).
1.04 "Benefit Arrangement" means any benefit arrangement,
obligation, or practice, whether or not legally enforceable, to
provide benefits (other than merely as salary or under a Benefit
Plan), as compensation for services rendered, to present or former
directors, employees, agents, or independent contractors, including,
but not limited to, employment or consulting agreements, severance
agreements or pay policies, executive or incentive compensation
programs or arrangements, sick leave, vacation pay, plant closing
benefits, salary continuation for disability, workers' compensation,
retirement, deferred compensation, bonus, stock option or purchase,
tuition reimbursement or scholarship programs, employee discount
programs, any plans subject to Section 125 of the Code, and any plans
providing benefits or payments in the event of a change of control,
change in ownership or effective control, or sale of a substantial
portion (including all or substantially all) of the assets of any
business or portion thereof, in each case with respect to any present
or former employees, directors, or agents.
1.05 "Benefit Plan" means an employee benefit plan as defined in
Section 3(3) of ERISA, together with plans or arrangements that would
be so defined if they were not (i) otherwise exempt from ERISA by that
or another section, (ii) maintained outside the United States, or
(iii) individually negotiated or applicable to only one person.
1.06 "Board" means the Board of Directors of the Company.
1.07 "Business Day" has the meaning specified in Rule 14d-1(e)(6)
of the Exchange Act.
1.08 "By-Laws" is defined in Section 3.01(a).
1.09 "By-Law Amendment" is defined in Section 6.03(d).
1.10 "Closing" is defined in Section 2.02.
1.11 "Closing Date" is defined in Section 2.02.
1.12 "Common Stock" is defined in the third recital.
1.13 "Company" is defined in the first paragraph of this
Agreement.
1.14 "Company Benefit Arrangement" means any Benefit Arrangement
any Related Employer sponsors or maintains or with respect to which
any Related Employer has or may have any current or future liability
(whether actual, contingent, with respect to any of its assets or
otherwise) , in each case with respect to any present or former
service providers to any Related Employer.
1.15 "Company Plan" means any Benefit Plan that any Related
Employer maintains or has maintained or to which any Related Employer
is obligated to make payments or has or may have any liability, in
each case with respect to any present or former employees of any
Related Employer.
1.16 "Company Intellectual Property" is defined in Section
3.01(s).
1.17 "Credit Facility" is defined in Section 6.03(g).
1.18 "Disclosure Schedule" means the Disclosure Schedule attached
hereto, which is divided by Section numbers corresponding with
specificity to the Sections hereof and discloses all matters which are
inconsistent with the representations set forth in Section 3.01.
1.19 "Disinterested Majority" means the affirmative vote of a
majority of the outstanding voting power of the Company's Common
Stock, voting as a single class, excluding any stockholder that is or
is an Affiliate of either (i) a Purchaser or (ii) a holder of Series B
Preferred Stock that is exchanging its shares of such stock for Common
Stock as contemplated by Section 6.03(c).
1.20 "Environmental Laws" means the laws of all Governmental
Entities relating to health or pollution or protection of the
environment or contained in any binding and enforceable regulation,
code, plan, order, decree or judgment issued, entered, promulgated or
approved thereunder.
1.21 "Environmental Subsidiary" means Perini Environmental
Services, Inc.
1.22 "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and all regulations and rules issued thereunder, or
any successor law.
1.23 "ERISA Affiliate" means any person or entity that, together
with the entity referenced and at the relevant time, would be treated
as a single employer under Code Section 414 or ERISA Section 4001
(including any entities excluded from the definition because they are
not subject to U.S. jurisdiction) and any general partnership of which
such entity is or has been a general partner.
1.24 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.25 "Filed Company SEC Documents" is defined in Section 3.01(f).
1.26 "GAAP" means United States generally accepted accounting
principles in effect from time to time.
1.27 "Government Entity" means any foreign, federal, state, or
local court or tribunal or administrative, governmental or regulatory
body, agency, commission, division, department, public body or other
authority.
1.28 "Hazardous Material" means any substance that has been
designated by any Governmental Entity or by applicable federal, state,
local or other applicable law to be radioactive, toxic, hazardous or
otherwise a danger to health or the environment, including, without
limitation, PCBs, asbestos, petroleum, urea-formaldehyde and all
substances listed as hazardous substances pursuant to the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, or defined as a hazardous waste pursuant to the
United States Resource Conservation and Recovery Act of 1976, as
amended, and the regulations promulgated pursuant to said laws, but
excluding office and janitorial supplies properly and safely
maintained.
1.29 "HSR Act" is defined in Section 3.01(c).
1.30 "Indemnifiable Losses" means any and all direct or indirect
demands, claims, payments, obligations, actions or causes of action,
assessments, losses, liabilities, fines, damages, costs or expenses
paid or incurred, of any kind or character (whether or not known or
asserted before the date of this Agreement, fixed or unfixed,
conditional or unconditional, choate or inchoate, liquidated or
unliquidated, secured or unsecured, accrued, absolute, contingent, or
otherwise). Indemnifiable Losses shall include penalties, interest, or
any amount payable to a third party as a result of such Indemnifiable
Losses. Indemnifiable Losses shall include legal, accounting, expert
and other expenses reasonably incurred in connection with
investigating or defending any of the foregoing, whether or not
resulting in any liability, and all amounts paid in settlement of
claims or actions in accordance with Article VIII.
1.31 "Indemnification Agreements" is defined in Section 5.12(b).
1.32 "Intellectual Property" means trademarks, trade names, trade
dress, service marks, copyrights, domain names, and similar rights
(including registrations and applications to register or renew the
registration of any of the foregoing), patents and patent
applications, trade secrets, ideas, inventions, improvements,
practices, processes, formulas, designs, know-how, confidential
business or technical information, computer software, firmware, data
and documentation, licenses of or agreements relating to any of the
foregoing, rights of privacy and publicity, moral rights, and any
other similar intellectual property rights and tangible embodiments of
any of the foregoing (in any medium including electronic media).
1.33 "Issuance" is defined in Section 5.05.
1.34 "Knowledge of the Company" means to the actual knowledge of
(i) any executive officer or director of the Company or any Subsidiary
of the Company or (ii) Robert Band, Ronald N. Tutor, Dennis M. Ryan,
Zohrab B. Marashlian, Craig W. Shaw, Michael E. Ciskey or Susan C.
Mellace.
1.35 "Lien" is defined in Section 3.01(c).
1.36 "Management Agreement Amendment" is defined in Section
6.01(d).
1.37 "Material Adverse Effect" on or with respect to a Person (or
group of entities taken as a whole) means any state of facts, event or
effect that individually (or in aggregate with all other states of
facts, events and effects) has had, or would reasonably be expected to
have, a material adverse change in the business, properties,
prospects, results of operations or financial condition of such Person
(or, if applicable, of such group of Persons taken as a whole), or on
the ability of such entity (or group of Persons) to consummate the
transactions contemplated hereby or to perform its obligations under
the Transaction Documents to which it is or will be a party or by
which it or its properties or assets is or will be bound.
1.38 "Multiemployer Plan" means any plan described in ERISA
Section 3(37).
1.39 "Outside Date" is defined in Section 7.01(b)(i).
1.40 "Owned Intellectual Property" is defined in Section 3.01(s).
1.41 "Pension Plan" means any plan subject to Code Section 412 or
ERISA Section 302 or Title IV (excluding any Multiemployer Plan) or
any comparable benefit plan not covered by ERISA.
1.42 "Permit" is defined in Section 3.01(c)(i).
1.43 "Permitted Liens" means those Liens (i) securing debt
(including, without limitation, the Credit Facility) that is reflected
on the Balance Sheet or the notes thereto, (ii) referred to in Section
3.01(g) of the Disclosure Statement, (iii) for Taxes not yet due or
payable or being contested in good faith and for which adequate
reserves have been established in accordance with GAAP, (iv) that
constitute mechanics', carriers', workmens' or like liens, liens
arising under original purchase price conditional sales contracts and
equipment leases with third parties entered into in the ordinary
course, or (v) Liens incurred or deposits made in the ordinary course
of business consistent with past practice in connection with workers'
compensation, unemployment insurance and social security, retirement
and other legislation and in the case of Liens described in clauses
(ii), (iii), (iv) or (v) that would not have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
1.44 "Person" means and includes an individual, a partnership, a
joint venture, a corporation, a trust, limited liability company, an
unincorporated organization, a Government Entity or any other
organization or entity.
1.45 "Proxy Statement" is defined in Section 5.05.
1.46 "Purchase Price" is defined in Section 2.01.
1.47 "Purchasers" is defined in the first paragraph of this
Agreement.
1.48 "Qualified Plan" means any Company Plan intended to meet the
requirements of Section 401(a) of the Code, including any previously
terminated plan.
1.49 "Registration Rights Agreement" is defined in Section
6.02(c)(i).
1.50 "Related Employer" means the Company and every ERISA
Affiliate.
1.51 "Rights Agreement" means that certain Shareholder Rights
Agreement by and between the Company and State Street Bank and Trust
Company, dated as of September 23, 1988, as amended, restated and
supplemented from time to time.
1.52 "SEC" means the Securities and Exchange Commission.
1.53 "Securities Act" means the Securities Act of 1933, as
amended.
1.54 "Shareholders Agreement" is defined in Section 6.02(c)(ii).
1.55 "Shares" means the shares of Common Stock purchased pursuant
to this Agreement.
1.56 "Stockholder Approvals" is defined in Section 5.05.
1.57 "Stockholder Meeting" is defined in Section 5.05.
1.58 "Stockholder Meeting Proposals" is defined in Section 5.05.
1.59 "Stock Purchase Warrants" is defined in Section 3.01(d).
1.60 "Subsidiary" means, with respect to the Company, any
corporation, limited or general partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, or other entity analogous to any of the
foregoing of which a majority of the equity ownership (whether voting
stock or comparable interest) is, at the time, owned directly or
indirectly by the Company. Subsidiary also means, with respect to the
Company, any such entity of which a minority of the equity ownership
is, at the time, owned directly or indirectly by the Company;
provided, however, that, in the case of such minority-owned entities,
any representation or warranty that is not already qualified to the
Company's Knowledge shall be deemed to be so qualified.
1.61 "Superior Transaction Proposal" is defined in Section
7.01(d).
1.62 "Transaction Documents" means this Agreement, the
Shareholders Agreement, the Registration Rights Agreement, the By-Law
Amendment, and the amendment to the Rights Agreement.
1.63 "Voting Security" means at any time shares of any class of
capital stock of the Company which are then entitled to vote generally
in the election of directors.
1.64 "Year 2000 Compatible" (and variations thereof) means, with
respect to any computer system, that such Computer System (a) records,
stores, processes and provides true and accurate dates and
calculations for dates and spans of dates, (b) is and will be able to
operate on a basis comparable to its current operation during and
after calendar year 2000, including, but not limited to, leap years,
and (c) shall not end abnormally or provide invalid or incorrect
results as a result of date data which represents or references (or
fails to represent or reference) different centuries or more than one
century.
ARTICLE II
Purchase and Sale of Shares
SECTION 2.01 Purchase and Sale of Shares. Upon the terms and
subject to the conditions set forth herein, the Company agrees to sell
to Purchasers and Purchasers agree (severally and not jointly) to
purchase from the Company 9,411,765 shares of Common Stock for an
aggregate purchase price of $40 million (the "Purchase Price"). Each
Purchaser shall purchase such number of Shares as is set forth
adjacent to its name on Exhibit 2.01 hereto; provided, however, that
Purchasers shall be entitled to amend Exhibit 2.01 (i) to change the
number of shares each of them is purchasing in their sole, joint
discretion, so long as the number of Shares to be purchased equals
9,411,765 and (ii) to reflect any assignment permitted under Section
9.07.
SECTION 2.02 Time and Place of the Closing. The closing (the
"Closing") shall take place at the offices of Goodwin, Procter & Hoar,
Exchange Place, Boston, Massachusetts 02109, at 10:00 a.m. Boston
time, on the third Business Day following the first date on which the
conditions to Closing (other than the conditions which may only be
satisfied at Closing) set forth in Article VI have first been
satisfied or waived, or at such other place, time and date as the
parties may agree. The "Closing Date" shall be the date the Closing
occurs, and shall be effective as of 12:01 a.m. on the Closing Date,
unless another date is agreed to in writing by the Company and
Purchasers.
SECTION 2.03 Transactions at the Closing. At the Closing, subject
to the terms and conditions of this Agreement, (a) the Company shall
issue and sell to Purchasers and Purchasers shall purchase the Shares;
(b) the Company and the Purchasers shall enter into the Shareholders
Agreement; and (c) the Company and Purchasers shall enter into the
Registration Rights Agreement.
ARTICLE III
Representations and Warranties
SECTION 3.01 Representations and Warranties of the Company. The
Company hereby represents and warrants to Purchasers, except as set
forth on the Disclosure Schedule or as disclosed in the Filed Company
SEC documents, as follows:
(a) Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the
laws of The Commonwealth of Massachusetts. The Company is duly
qualified or licensed and, if applicable, is in good standing as
a foreign corporation, in each jurisdiction in which the
properties owned, leased or operated, or the business conducted,
by it require such qualification or licensing, except for any
such failure so to qualify or be in good standing which would not
reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole. The Company has
the requisite power and authority to carry on its business as it
is now being or is currently proposed to be conducted. The
Company has heretofore made available to Purchasers complete and
correct copies of the Articles of Organization and the Amended
and Restated By-laws of the Company, dated as of January 17, 1997
(the "By-Laws"), in each case as amended, restated and
supplemented.
(b) Corporate Authority. Subject to obtaining the
Stockholders Approvals, each of the Company and its Subsidiaries
has (or will have at the time of such act) the requisite
corporate or other power and authority to execute, deliver and
perform each Transaction Document to which it is or will be a
party and to consummate the transactions contemplated thereby.
The execution, delivery and performance of each Transaction
Document by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby have been duly
authorized (or will have been duly authorized at the time of such
act) by the Board, and no other corporate proceedings on the part
of the Company are necessary to authorize any Transaction
Document or for the Company to consummate the transactions so
contemplated (other than as expressly provided in the terms of
this Agreement and, with respect to the Issuance, the Stockholder
Approvals). Each Transaction Document to which the Company is or
will be a party is, or when executed and delivered will be, a
valid and binding agreement of such party, enforceable against
the Company in accordance with the terms thereof, assuming that
each Transaction Document to which the Company is a party is a
valid and binding agreement of the Purchasers (as applicable).
(c) No Violations; Consents and Approvals.
(i) Assuming that the Stockholder Approvals are
obtained and that the Credit Facility is amended as
contemplated in Section 6.03(g), the execution, delivery or
performance by the Company or any of its Subsidiaries of
each Transaction Document to which any of them is or will be
a party or the consummation by the Company or any of its
Subsidiaries of the transactions contemplated thereby (A)
will not result in a violation or breach of the Articles of
Organization or the - By-laws, the articles or certificate
of incorporation or by-laws (or other organizational
documents) of any of the Subsidiaries and (B) subject to the
governmental filings and other - matters referred to in
clause (ii) below, will not result in a violation or breach
of (or give rise to any right of termination, revocation,
cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice
or lapse of time or both) under, or result in the creation
of any mortgage, lien, charge, security interest or
encumbrance of any kind (a "Lien"), other than a Permitted
Lien, upon any of the properties or assets of the Company
and its Subsidiaries under (1) any of the terms, conditions
or provisions - of any note, bond, mortgage, indenture,
contract, agreement, lease, license, obligation, instrument,
offer, commitment, understanding or other arrangement (each
a "Contract") or of any license, waiver, exemption, order,
franchise, permit or concession (each a "Permit") to which
the Company or any Subsidiary is a party or by which any of
their properties or assets may be bound, or (2) any
judgment, order, decree, statute, law, regulation or rule
applicable to the - Company or any Subsidiary.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as
may be required under, and other applicable requirements of,
the Securities Act, the Exchange Act, and the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act") and filings under state securities
or "blue sky" laws, and as required by the American Stock
Exchange, no consent, approval, order or authorization of,
or registration, declaration or filing with, any government
or any court, administrative agency or commission or other
governmental authority or agency, federal, state or local or
foreign (a "Governmental Entity"), is required with respect
to the Company or any of its Subsidiaries in connection with
the execution, delivery or performance by the Company and
any Subsidiary of each Transaction Document to which it is
or will be a party or the consummation by the Company and
its Subsidiaries of the transactions contemplated hereby and
thereby (except where the failure to obtain such consents,
approvals, orders or authorizations, or to make such
registrations, declarations, filings or agreements would not
have a Material Adverse Effect on the Company and the
Subsidiaries, taken as a whole).
(d) Capital Stock. The authorized capital stock of the Company
consists of (i) 15,000,000 shares of Common Stock, par value $1.00 per
share, of which an aggregate of 5,682,287 shares of Common Stock were
issued and outstanding as of the close of business on January 14, 2000
and of which 4,135,094 shares of Common Stock were reserved for
issuance upon the conversion of the Series B Preferred Stock as of the
close of business on January 14, 2000, and (ii) 1,000,000 shares of
preferred stock, $1.00 par value per share, of which (1) 100,000
shares of $21.25 Convertible Exchangeable Preferred Stock (the "$21.25
Preferred Stock") have been designated and 99,990 shares of which are
issued and outstanding as of the close of business on January 14,
2000; (2) 200,000 shares of Series A Junior Participating Preferred
Stock have been designated and none of which are issued or
outstanding, as of the close of business on January 14, 2000; and (3)
500,000 shares of Series B Cumulative Convertible Preferred Stock (the
"Series B Preferred Stock") have been designated and 200,184 of which
are issued and outstanding, as of the close of business on January 14,
2000. As of the close of business on January 14, 2000, there were
outstanding under the Company's 1982 Stock Option Plan and certain
other Options granted on January 17, 1997, January 19, 1998, December
10, 1998 and January 4, 1999 (collectively, the "Company Stock Plans")
options to acquire an aggregate of 696,500 shares of Common Stock
(subject to adjustment on the terms set forth therein). As of the
close of business on January 14, 2000, the Company had no shares of
Common Stock reserved for issuance, other than 916,610 shares of
Common Stock reserved for issuance upon exercise of outstanding stock
options issued pursuant to the Company Stock Plans, 662,186 shares
reserved for issuance upon the conversion of the $21.25 Preferred
Stock, 4,135,094 shares reserved for issuance upon the conversion of
the Series B Preferred Stock, and 420,000 shares reserved for issuance
upon exercise of stock purchase warrants (the "Stock Purchase
Warrants"). As of the close of business on January 14, 2000, there
were outstanding under the Company Stock Plans no shares of restricted
stock and no shares of Common Stock reserved for issuance of
restricted stock. All of the outstanding shares of Common Stock,
$21.25 Preferred Stock and Series B Preferred Stock have been duly
authorized and validly issued, and are fully paid and nonassessable.
There are no preemptive or similar rights on the part of any holders
of any class of securities of the Company or of any of its
Subsidiaries. Except for the Common Stock, the $21.25 Preferred Stock,
the Series B Preferred Stock and the Stock Purchase Warrants, as set
forth above, the Company has outstanding no bonds, debentures, notes
or other obligations or securities the holders of which have the right
to vote (or are convertible or exchangeable into or exercisable for
securities having the right to vote) with the stockholders of the
Company on any matter. Except as set forth above and in the Rights
Agreement, there are no securities convertible into or exchangeable
for, or options, warrants, calls, subscriptions, rights, contracts,
commitments, arrangements or understandings of any kind to which the
Company or any of its Subsidiaries is a party or by which any of them
is bound obligating the Company or any of its Subsidiaries
contingently or otherwise to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other
voting securities of the Company or of any of its Subsidiaries. Except
for the Rights Agreement, there are no outstanding Contracts of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise
acquire any shares of capital stock of the Company or of any of its
Subsidiaries. Except for shares of Series B Preferred Stock and shares
to be issued in connection with this Agreement, all securities of the
Company have been registered under the Securities Act and applicable
state securities and blue sky law, or have been issued in reliance on
an exemption therefrom. Since January 14, 2000, the Company has not
redeemed or otherwise acquired any shares of its capital stock or
issued any capital stock (except upon exercise of options issued or
agreed to be issued prior to the date hereof under a Company Stock
Plan and for payment of dividends to the holders of Series B Preferred
Stock) or any option, warrant or right relating thereto.
(e) Subsidiaries. Exhibit 21 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 as filed with the SEC
(the "Annual Report") is a true, accurate and correct statement of all
of the information required to be set forth in Exhibit 21 by the
regulations of the SEC as of the date of such report and as of the
date of this Agreement. Each Subsidiary has been duly incorporated or
organized and is validly existing as a corporation or other legal
entity in good standing under the laws of the jurisdiction of its
incorporation or formation, has the corporate or other power and
authority to own, lease and operate its assets and properties and to
conduct its business as described in the Filed Company SEC Documents
and as currently owned or leased and conducted and is duly qualified
to transact business as a foreign corporation or other legal entity
and is in good standing (if applicable) in each jurisdiction in which
the conduct of its business or its ownership, leasing or operation of
assets or property requires such qualification, other than any failure
to be so qualified or in good standing as would not reasonably be
expected to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole. All of the outstanding capital stock
of each Subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and all capital stock of Subsidiaries
owned by the Company, directly or through Subsidiaries (other than
directors' qualifying shares), are free and clear of any Lien or
restriction upon voting or transfer of any kind (other than the pledge
of all of the capital stock of the Subsidiaries pursuant to the Credit
Facility and such transfer restrictions as may exist under federal and
state securities laws), and there are no rights granted to or in favor
of any third party (whether acting in an individual, fiduciary or
other capacity) other than the Company to acquire any such capital
stock, any additional capital stock or any other securities of any
Subsidiary.
(f) SEC Filings. The Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed
by it with the SEC under the Securities Act and the Exchange Act since
January 1, 1993 and up to the date hereof and it will file all such
documents required to be filed before the Closing (the "Filed Company
SEC Documents"). As of its filing date, each Filed Company SEC
Document filed, as amended or supplemented, if applicable, (i)
complied in all respects with the applicable requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations thereunder and (ii) did not, at the time it was filed,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(g) Financial Statements. Each of the consolidated financial
statements (including, in each case, any related notes and schedules)
contained or to be contained in the Filed Company SEC Documents (i)
complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
SEC with respect thereto, (ii) was prepared in accordance with GAAP
applied on a consistent basis throughout the periods indicated (except
as may be indicated in the notes to such financial statements or, in
the case of unaudited statements, as permitted by the SEC on Form 10-Q
under the Exchange Act) and (iii) fairly presented the consolidated
financial position of the Company and its Subsidiaries as of the
respective dates thereof and the consolidated results of its
operations, stockholders' equity and cash flows, in each case for the
respective periods indicated, consistent with the books and records of
the Company and its Subsidiaries, except that the unaudited interim
financial statements are subject to normal year-end adjustments which
are not expected to be material in amount. The unaudited balance sheet
of the Company as of September 30, 1999 is referred to herein as the
"Balance Sheet."
(h) Undisclosed Liabilities. Except (i) as disclosed in the Filed
Company SEC Documents or in any Section of the Disclosure Schedule,
and, in either case, reserved for in the Balance Sheet, and (ii)
normal and recurring liabilities incurred since the date of the
Balance Sheet in the ordinary course of business consistent with prior
practices and not prohibited by the Transaction Documents, the Company
and its Subsidiaries do not have any liabilities or obligations or any
nature, whether known or unknown, whether absolute, accrued,
contingent or otherwise, and whether due or to become due, which would
reasonably be expected to have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole.
(i) Absence of Certain Events and Changes. Except as otherwise
contemplated by the Transaction Documents, since January 1, 1999, the
Company and its Subsidiaries have conducted their business in the
ordinary course, consistent with past practices, and there has not
been any event, change or development which would reasonably be
expected to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole.
(j) Compliance with Applicable Laws. Each of the Company and its
Subsidiaries is in compliance with all statutes, laws, regulations,
rules, judgments, orders and decrees of all Governmental Entities
applicable to it, and neither the Company nor any of the Subsidiaries
has received any notice alleging noncompliance except, with reference
to all the foregoing, where the failure to be in compliance would not
reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole. Each of the Company
and its Subsidiaries has all Permits that are required in order to
permit it to carry on its business as it is presently conducted,
except where the failure to have such Permits would not reasonably be
expected to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole. All such Permits are in full force and
effect and the Company and its Subsidiaries are in compliance with the
terms of such Permits, except where the failure to be in full force
and effect or in compliance would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole. This Section 3.01(j) does not relate to employee benefits
matters (for which Section 3.01(o) is applicable), environmental
matters (for which Section 3.01(p) is applicable) or tax matters (for
which Section 3.01(n) is applicable).
(k) Title to Assets. The Company and the Subsidiaries have title
to all material properties (real and personal) owned by the Company
and the Subsidiaries which are necessary for the conduct of the
business of the Company and the Subsidiaries as described in the Filed
Company SEC Documents and as currently conducted, free and clear of
any Lien that would reasonably be expected to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole. To the
Company's Knowledge, all material properties held under lease by the
Company or the Subsidiaries are held under valid, subsisting and
enforceable leases. This Section 3.01(k) does not relate to
Intellectual Property (for which Section 3.01(s) is applicable).
(l) Litigation. There are no civil, criminal or administrative
actions, suits or proceedings pending or, to the Knowledge of the
Company, threatened, against the Company or any of its Subsidiaries
that, if adversely determined, would reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole. There are no outstanding judgments, orders, decrees, or
injunctions of any Governmental Entity against the Company or any of
its Subsidiaries that, would be reasonably expected to have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(m) Contracts. All of the Company's Contracts that are required
to be described in the Filed Company SEC Documents or to be filed as
exhibits thereto are described in the Filed Company SEC Documents or
filed as exhibits thereto and are legal, valid, binding and in full
force and effect except to the extent that any failure to be
enforceable would not reasonably be expected to have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole.
There does not exist under any Contract any violation, breach or event
of default, or event or condition that, after notice or lapse of time
or both, would constitute a violation, breach or event of default
thereunder, on the part of the Company or any of the Subsidiaries or,
to the Knowledge of the Company, any other Person, other than such
violations, breaches or events of default as would not reasonably be
expected to have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole. The enforceability of all Contracts
will not be affected in any manner by the execution, delivery or
performance of any of the Transaction Documents or the consummation of
the transactions contemplated thereby, and no Contract contains any
change in control or other terms or conditions that will become
applicable or inapplicable as a result of the consummation of the
transactions contemplated hereby or thereby except for such effects as
would not reasonably be expected to have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole.
(n) Taxes.
(i) (A) All Tax Returns required to be filed by or on behalf
of each of the Company and the Subsidiaries - have been filed;
(B) all such Tax Returns filed are complete and accurate in all
material - respects, and all Taxes (whether or not shown to be
due on such Tax Returns) have been paid; (C) neither the Company
nor any of the Subsidiaries is currently the beneficiary of any
extension of time within which to file any such Tax Return; (D)
no written claim (other than a - claim that has been finally
settled) has been made by a taxing authority that the Company or
any of the Subsidiaries is subject to an obligation to file Tax
Returns or to pay or collect Taxes imposed by any jurisdiction in
which such entity does not file Tax Returns or pay or collect
Taxes; and (E) all material assessments for Taxes due with
respect to completed and - settled examinations or concluded
litigation have been paid. As used in this Agreement, "Taxes"
shall include all federal, state, local and foreign income,
franchise, property, sales, excise and other taxes, tariffs or
governmental charges of any nature whatsoever, including interest
and penalties, and additions thereto; and "Tax Returns" shall
mean all federal, state, local and foreign tax returns,
declarations, statements, reports, schedules, forms and
information returns relating to Taxes.
(ii) The Company and each of the Subsidiaries has duly and
timely withheld all Taxes required to be withheld in connection
with its business and assets, and such withheld Taxes have been
either duly and timely paid to the proper governmental
authorities or properly set aside in accounts for such purpose.
(iii)(A) Neither the Company nor any of the Subsidiaries is
a party to or bound by or has any obligation under any Tax
allocation, sharing, indemnification or similar agreement or
arrangement; and (B) neither the Company nor any of the
Subsidiaries is or has been at any time a member of any group of
companies filing a consolidated, combined or unitary income tax
return.
(iv) (A) All taxable periods of the Company and each of the
Subsidiaries ending on or before December 31, 1996 are closed or
no longer subject to audit; (B) neither the Company nor any the
Subsidiaries is currently under audit by any taxing authority;
(C) no waiver of the statute of limitations is in effect with
respect to any taxable year of the Company or any of the
Subsidiaries; and (D) correct and complete copies of all income
Tax Returns, examination reports and statements of deficiencies
assessed against or agreed to by the Company or any Subsidiary
since January 1, 1993 have been made available to the Purchasers
for their review.
(o) Employee Benefit Plans and Related Matters; ERISA.
(i) Schedule 3.01(o) contains a complete and accurate list
of all Company Plans and Company Benefit Arrangements. Schedule
3.01(o) specifically identifies all Company Plans (if any) that
are Qualified Plans.
(ii) With respect, as applicable, to Benefit Plans and
Benefit Arrangements:
(A) the Company has made available true, correct, and
complete copies of the following documents with respect to
all Company Plans and Company Benefit Arrangements to the
Purchasers: (1) all - current plan or arrangement documents,
including but not limited to trust agreements, insurance
policies, service agreements and formal and informal
amendments to each; (2) the most recent - Forms 5500 or
5500C/R and any attached financial statements and related
actuarial reports, and those for the prior three years; (3)
the last Internal Revenue Service ("IRS") determination -
letter, the last IRS determination letter that covered the
qualification of the entire plan (if different), and the
materials submitted to obtain those letters; (4) summary
plan descriptions - and summaries of material modifications,
and any prospectuses that describe the Company Benefit
Arrangements or Company Plans; (5) written descriptions of
all non-written agreements relating - to any such plan or
arrangement; (6) all reports submitted within the three
years preceding the - date of this Agreement by third-party
administrators, actuaries, investment managers, consultants,
or other independent contractors (other than participant
statements); (7) all - notices that the IRS, Department of
Labor or any other governmental agency or entity issued to
the Seller within the four years preceding the date of this
Agreement; (8) employee manuals or - handbooks containing
personnel or employee relations policies; (9) the most
recent quarterly - listing of workers' compensation claims
and a schedule of workers' compensation claims of the Seller
for the last three fiscal years; and (10) any other
documents Purchasers has requested; --
(B) the Qualified Plans qualify under Section 401(a) of
the Code, and nothing has occurred with respect to the
operation of any Qualified Plan that could cause the
imposition of any liability, lien, penalty, or tax under
ERISA or the Code; each Company Plan and each Company
Benefit Arrangement has been maintained in accordance with
its constituent documents and with all applicable provisions
of domestic and foreign laws, including federal and state
securities laws and any reporting and disclosure
requirements; with respect to each Company Plan, no
transactions prohibited by Code Section 4975 or ERISA
Section 406 and no breaches of fiduciary duty described in
ERISA Section 404 have occurred, except to the extent that
such transaction or breach would not have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a
whole; and, to the Company's Knowledge, no such transaction
or breach has occurred; and no Company Plan, other than the
Company's employee stock ownership plan, contains any
security issued by any Related Employer;
(C) with respect to each Pension Plan, (1) no Related
Employer has terminated or withdrawn (partially or - fully)
or sought a funding waiver, and no facts exist that could
reasonably be expected to cause such actions; (2) no
accumulated funding deficiency (under Code Section 412)
exists or - has existed; (3) no reportable event (as defined
in ERISA Section 4043) has occurred; (4) all - - costs have
been provided for on the basis of consistent methods in
accordance with sound actuarial assumptions and practices;
(5) the assets, as of its last valuation date, exceeded -
its "Benefit Liabilities" (as defined in ERISA Section
4001(a)(16)); (6) since the last - valuation date, there
have been no amendments or changes to increase the amounts
of benefits and, to the Knowledge of the Company, nothing
has occurred that would reduce the excess of assets over
benefit liabilities in such plans; and (7) no Related
Employer has incurred - liability (other than for routine
contributions not yet due) with respect to any Multiemployer
Plan nor terminated or withdrawn (partially or fully) from
any such Plan, and no facts exist that could reasonably be
expected to cause such result or actions;
(D) there are no pending claims (other than routine
benefit claims) or lawsuits that have been asserted or
instituted by, against, or relating to, any Company Plans or
Company Benefit Arrangements, nor is there any basis for any
such claim or lawsuit. No Company Plans or Company Benefit
Arrangements are or have been under audit or examination
(nor has notice been received of a potential audit or
examination) by any domestic or foreign governmental agency
or entity, and no matters are pending with respect to any
Company Plan under the IRS's Employee Plans Compliance
Resolutions System or any successor or predecessor program;
(E) no Company Plan or Company Benefit Arrangement
contains any provision or is subject to any law that would
accelerate or vest any benefit or require severance,
termination or other payments or trigger any liabilities as
a result of the transactions this Agreement contemplates; no
Related Employer has declared or paid any bonus or incentive
compensation related to the transactions this Agreement
contemplates; and no payments under any Company Plan or
Company Benefit Arrangement would, individually or
collectively, be nondeductible under Code Section 280G;
(F) all reporting, disclosure, and notice requirements
of ERISA and the Code have been satisfied in all material
respects with respect to each Company Plan and each Company
Benefit Arrangement;
(G) each Related Employer has paid all amounts it is
required to pay as contributions to the Company Plans as of
the date of the Balance Sheet; all benefits accrued under
any unfunded Company Plan or Company Benefit Arrangement
will have been paid, accrued, or otherwise adequately
reserved in accordance with GAAP as of the date of the
Balance Sheet; and all monies withheld from employee
paychecks with respect to Company Plans have been
transferred to the appropriate plan within 30 days of such
withholding;
(H) to the Knowledge of the Company, no statement,
either written or oral, has been made by the Related
Employers to any person with regard to any Company Plan or
Company Benefit Arrangement that was not in accordance with
the Company Plan or Company Benefit Arrangement and that
would involve a material increase in expense or liability
under such plan or arrangement;
(I) the Related Employers have no liability with
respect to any Benefit Plan that should have been sponsored
or maintained by any ERISA Affiliate;
(J) all group health plans of the Related Employers
materially comply with the requirements of Part 6 of Title I
of ERISA ("COBRA"), Code Section 5000, and the Health
Insurance Portability and Accountability Act; the Related
Employers have no liability under or with respect to COBRA
for their own actions or omissions or those of any
predecessor; the Related Employers' voluntary employee
beneficiary association, if any, is exempt from tax and
complies with all requirements applicable to it; no employee
or former employee (or beneficiary of either) of a Related
Employer is entitled to receive any benefits, including,
without limitation, death or medical benefits (whether or
not insured) beyond retirement or other termination of
employment, other than as applicable law requires, and
Seller has provided its method and supporting documentation
for any accounting charge it or the Related Employers have
calculated for such benefits;
(iii) Schedule 3.01(o) hereto contains the most recent
quarterly listing of workers' compensation claims and a schedule
of workers' compensation claims of the Company for the last three
(3) fiscal years.
(p) Environmental Matters.
(i) Hazardous Material. To the Knowledge of the Company, no
Hazardous Material has been released in, on or under any property
(including the land and the improvements, ground water and
surface water thereof) that the Company has at any time owned,
operated or leased. Schedule 3.01(p) identifies all known
underground and aboveground storage tanks, and the capacity, age,
and contents of such tanks, located on real property owned or
leased by the Company. Except as listed on Schedule 3.01(p), no
underground storage tanks are currently located under any
property owned, operated or leased by the Company.
(ii) Hazardous Materials Activities. The Company has not
transported, stored, used, manufactured, disposed of or released,
or exposed its employees or others to, Hazardous Materials in
violation of any Environmental Law in effect on or before the
Closing Date, nor has the Company disposed of, transported, sold,
or manufactured any product containing a Hazardous Material
(collectively, "Company Hazardous Materials Activities") in
violation of any Environmental Law in effect prior to or as of
the date hereof and the Closing.
(iii) Permits. The Company currently holds all environmental
and health approvals, permits, licenses, clearances and consents
(the "Environmental Permits") necessary for the conduct of the
Company's Hazardous Material Activities and other business of the
Company as such activities and business are currently being
conducted. All Environmental Permits are in full force and
effect. The Company (x) is in compliance in all material respects
with all terms and conditions of the - Environmental Permits and
(y) is in compliance in all material respects with all other -
limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in
the Environmental Laws. To the Company's Knowledge, there are no
circumstances that may prevent such compliance in the future.
Schedule 3.01(p) includes a listing and description of all
Environmental Permits currently held by the Company.
(iv) Environmental Liabilities. No action, proceeding,
revocation proceeding, amendment procedure, writ, injunction or
claim is pending, or, to the Knowledge of the Company, threatened
against the Company concerning any Environmental Permit,
Hazardous Material or any Company Hazardous Materials Activity.
There are no past or present actions, activities, circumstances,
conditions, events, or incidents that are reasonably likely to
involve the Company or any of its Subsidiaries (or any person or
entity whose liability the Company or any of its Subsidiaries has
retained or assumed, either by contract or operation of law) in
any litigation under the Environmental Laws, or impose upon the
Company or any of its Subsidiaries (or any person or entity whose
liability the Company or any of its Subsidiaries has retained or
assumed, either by contract or operation of law) any liability
under the Environmental Laws material to the Company and its
Subsidiaries on a consolidated basis.
(v) Environmental Subsidiary. As to the Environmental
Subsidiary, in addition to the other representations and
warranties contained in this 3.01(p):
(A) The Environmental Subsidiary is not listed as the
generator of any Hazardous Material on any waste manifest or
other document prepared pursuant to the Environmental Laws
or by contract, and the Environmental Subsidiary has not
assumed, under the Environmental Laws or by contract, the
responsibilities or liabilities of the generator of any
Hazardous Material;
(B) To the Knowledge of the Company, the Environmental
Subsidiary has not performed any remedial action taken
pursuant to the Environmental Laws, where the remedial
action is not, or it is alleged in writing by any Person or
entity that the remedial action is not, constructed and
operating in accordance with the Environmental Laws or
contract; and
(C) There are no claims, actions, causes of action, or
other written notices pending or, to the Company's
Knowledge, threatened against the Environmental Subsidiary
under the Environmental Laws or contract, arising from the
Environmental Subsidiary's provision of materials or
services to any Person or entity, that are not subject to
coverage under the Environmental Subsidiary's insurance
policies, except where such claims, actions, causes of
action or other written notice will not have a Material
Adverse Effect on the Environmental Subsidiary.
(q) Takeover Law. The Company has taken all action necessary to ensure
that the provisions of Chapter 110F of the Massachusetts General Laws will
not be applicable to Purchasers or their Affiliates as a result of the
transactions contemplated by the Transaction Documents.
(r) Status of Shares. Assuming the Stockholder Approvals are obtained,
the Shares to be issued at the Closing will have been duly authorized by
all necessary corporate action on the part of the Company, and at Closing
such Shares will have been validly issued and, assuming payment therefor
has been made, will be fully paid and nonassessable, and the issuance of
such Shares will not be subject to preemptive rights of any other
stockholder of the Company. Assuming the Stockholder Approvals have been
obtained, the Shares will be eligible for listing on the American Stock
Exchange subject only to notice of issuance.
(s) Intellectual Property.
(i) The Intellectual Property that is owned by the Company and
its Subsidiaries (the "Owned Intellectual Property") constitutes all
of the Intellectual Property used, intended to be used or held for use
in connection with, necessary for the conduct of, or otherwise
material to the Company and the Subsidiaries, except for Intellectual
Property subject to written or oral licenses, agreements or
arrangements pursuant to which the use of Intellectual Property by any
Company or any Subsidiary is permitted by any Person (the
"Intellectual Property Licenses" and, together with the Owned
Intellectual Property, the "Company Intellectual Property"). The Owned
Intellectual Property is owned free from any Liens (other than
Permitted Liens). All material Intellectual Property Licenses are in
full force and effect in accordance with their terms, and are free and
clear of any Liens (other than Permitted Liens). Immediately after the
Closing, the Company and the Subsidiaries will own or have the right
to use all the Company Intellectual Property, in each case free from
Liens (except for Permitted Liens incurred in the ordinary course of
business) and on the same terms and conditions as in effect prior to
the Closing.
(ii) To the knowledge of the Company, the conduct of the business
of the Company and its Subsidiaries does not infringe or conflict with
the rights of any third party in respect of any Intellectual Property.
To the Knowledge of the Company, none of the Company Intellectual
Property is being infringed by any third party. There is no claim or
demand of any Person pertaining to, or any proceeding which is pending
or, to the Knowledge of the Company, threatened, that challenges the
rights of the Company or any of the Subsidiaries in respect of any
Company Intellectual Property, or that claims that any default exists
under any Intellectual Property License. None of the Company
Intellectual Property is subject to any outstanding order, ruling,
decree, judgment or stipulation by or with any court, tribunal,
arbitrator, or other Governmental Entity adverse to the Company.
(iii) The Owned Intellectual Property has been duly registered
with, filed in or issued by, as the case may be, the appropriate
filing offices, domestic or foreign, to the extent necessary or
desirable to ensure usual and customary protection for Intellectual
Property in the relevant jurisdiction under any applicable law, and
the same remain in full force and effect. The Company and the
Subsidiaries have taken all necessary actions to ensure usual and
customary protection in the relevant jurisdiction of the Company
Intellectual Property (including maintaining the secrecy of all
confidential Intellectual Property) under any applicable law or any
Contract.
(t) Guarantees. Section 3.01(t) of the Disclosure Schedule sets forth
a description of any obligations or liabilities of any person other than
the Company or its Subsidiaries that are guaranteed by or subject to a
contingent obligation of the Company or any of its Subsidiaries.
(u) Labor Matters. With respect to employees of and service providers
to the Related Employers:
(i) the Related Employers are complying and have complied in all
material respects with all applicable domestic and foreign laws
respecting employment and employment practices, terms and conditions
of employment and wages and hours, including without limitation any
such laws respecting employment discrimination, workers' compensation,
family and medical leave, the Immigration Reform and Control Act, and
occupational safety and health requirements, and no claims or
investigations are pending or, to the Knowledge of the Company,
threatened with respect to such laws, either by private individuals or
by governmental agencies;
(ii) no Related Employer is or has been engaged in any unfair
labor practice, and there is not now, nor within the past three years
has there been, any unfair labor practice complaint against any
Related Employer pending or, to the Knowledge of the Company,
threatened, before the National Labor Relations Board or any other
comparable foreign or domestic authority or any workers' council;
(iii)no labor strike, lock-out, slowdown, or work stoppage is or
has been, within the last three years, pending or, to the Knowledge of
the Company, threatened against or directly affecting any Related
Employer; and
(iv) all persons who are or were performing services for any
Related Employer and are or were classified as independent contractors
do or did satisfy and have satisfied the requirements of law to be so
classified, and the appropriate Related Employer has fully and
accurately reported their compensation on IRS Forms 1099 when required
to do so.
(v) Brokers or Finders. Other than Houlihan, no agent, broker,
investment banker or other firm is or will be entitled to any broker's
or finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by the Transaction
Documents.
(w) Disclosure. To the Knowledge of the Company, no
representation or warranty by the Company contained in this Agreement
or any of the other Transaction Documents, or in any certificate to be
furnished by or on behalf of the Company pursuant hereto or thereto,
contains or will contain any untrue statement of a material fact or
omits or will omit to state a material fact necessary to make the
statements contained herein or therein, in light of the circumstances
under which they were made, not misleading.
(x) Opinion of Independent Investment Banking Firm; Special
Committee. The Special Committee of the Board (the "Special
Committee") has obtained an opinion from Houlihan Lokey Howard & Zukin
Capital ("Houlihan"), in a form satisfactory to the Special Committee,
that the financial terms of the transactions contemplated by the
Transaction Documents are fair to the holders of the Common Stock from
a financial point of view. The Special Committee has recommended the
execution and performance of this Agreement to the full Board.
(y) Year 2000. The disclosure as to Year 2000 Compatibility
issues in the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1999, is true and correct in all material respects
and does not omit to state a material fact necessary to make the
statements contained therein not misleading.
(z) No Illegal or Improper Transactions. Neither the Company nor
any Subsidiary has, nor has any director, officer, employee, agent or
affiliate of the Company or any Subsidiary, directly or indirectly,
used funds or other assets of the Company or any Subsidiary, or made
any promise or undertaking in such regard, for (i) illegal
contributions, gifts, entertainment or other expenses relating to
political activity; (ii) illegal payments to or for the benefit of
governmental officials or employees, whether domestic or foreign;
(iii) illegal payments to or for the benefit of any Person, or any
director, officer, employee, agent, affiliate or representative
thereof; or (iv) the establishment or maintenance of a secret or
unrecorded fund; and, to the Knowledge of the Company, there have been
no false or fictitious entries made in the books or records of the
Company or any Subsidiary.
(aa) Insurance.
(i) All insurance policies to which the Company or any
of the Subsidiaries is a party or that provide coverage to
any director or officer of the Company or of any of the
Subsidiaries (A) are valid, - outstanding, and enforceable,
(B) are issued by an insurer that, to the Knowledge of the -
Company, is financially sound and reputable, (C) taken
together provide adequate insurance for - the properties,
assets and business of the Company and the Subsidiaries for
all risks normally insured against by a Person carrying on
the same or similar business or businesses, (D) comply -
with the insurance requirements of all laws and contracts to
which the Company and any of the Subsidiaries is a party or
by which it is bound, except where such failures to so
comply would not be reasonably likely to have a Material
Adverse Effect on the Company and the Subsidiaries, taken as
a whole, and (E) do not provide for any retrospective
premium adjustment or other - experience-based liability on
the part of the Company or any of the Subsidiaries.
(ii) Neither the Company nor any Subsidiary has
received any refusal of coverage or any notice that a
defense will be afforded with reservation of rights, or any
notice of cancellation or any other indication that any
insurance policy is no longer in full force or effect or
will not be renewed or that the issuer of any policy is not
willing or able to perform its obligations thereunder,
except where such refusals, failures to renew or
cancellations would not be reasonably likely to have a
Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole.
(iii) The Company and each of the Subsidiaries has paid
all premiums due with respect to all periods up to and
including the date hereof and has otherwise performed all of
its obligations under each policy to which such Person is a
party or that provides coverage to such Person or any
officers or directors thereof, except where the failure to
do so would not be reasonably likely to have a Material
Adverse Effect on the Company and the Subsidiaries, taken as
a whole.
(iv) The Company and each Subsidiary has given notice
to the insurer of all material claims that may be insured
thereby.
SECTION 3.02 Representations and Warranties of TSC. TSC represents and
warrants as follows:
(a) Organization. TSC is a corporation validly existing and in good
standing under the laws of the jurisdiction of its organization, with all
requisite corporate power and authority to own, lease and operate its
assets and properties and to conduct its business as now being conducted.
(b) Corporate Authority. TSC has (or will have at the time of such
act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a
party and to consummate the transactions contemplated thereby. The
execution, delivery and performance of each Transaction Document by TSC and
the consummation by TSC of the transactions contemplated hereby and thereby
have been duly authorized (or will have been duly authorized at the time of
such act) and no other corporate proceedings on the part of TSC are
necessary to authorize any Transaction Document or for TSC to consummate
the transactions so contemplated. Each Transaction Document to which TSC is
or will be a party is, or when executed and delivered will be, a valid and
binding agreement of such party, enforceable against TSC in accordance with
the terms thereof, assuming that each Transaction Document to which TSC is
a party is a valid and binding agreement of the Company and each other
Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by TSC of each
Transaction Document to which it is or will be a party or the
consummation by TSC of the transactions contemplated thereby (A) will
not result - in a violation or breach of its articles or certificate
of incorporation or by-laws (or other organizational documents) or (B)
subject to the governmental filings and other matters referred - to in
clause (ii) below, will not result in a violation or breach of (or
give rise to any right of termination, revocation, cancellation or
acceleration under or increased payments under), or constitute a
default (with or without due notice or lapse of time or both) under,
or result in the creation of any Lien upon any of the properties or
assets of TSC or the Company and its Subsidiaries under any judgment,
order, decree, statute, law, regulation or rule applicable to TSC.
(ii) Except for consents, approvals, orders, authorizations,
registrations, declarations or filings as may be required under, and
other applicable requirements of, the HSR Act (and filings after the
Closing, if any, under Regulation D, Section 13(d) and/or Section 16
of the Exchange Act), no consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity
is required with respect to TSC in connection with the execution,
delivery or performance by TSC of each Transaction Document to which
it is or will be a party or the consummation by TSC of the
transactions contemplated hereby and thereby (except where the failure
to obtain such consents, approvals, orders or authorizations, or to
make such registrations, declarations, filings or agreements would not
have a Material Adverse Effect on TSC).
(d) Acquisition for Investment. TSC is acquiring the Shares being purchased
by it for its own account for the purpose of investment and not with a view to
or for sale in connection with any distribution thereof, and TSC has no present
intention or plan to effect any distribution of Shares; provided that the
disposition of TSC's property shall at all times be and remain within its
control and subject to the provisions of this Agreement and the Registration
Rights Agreement. TSC is an "Accredited Investor" within the meaning of Rule
501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or other firm
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee from TSC in connection with any of the transactions contemplated
by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by TSC for inclusion in
the Proxy Statement shall not, on the date the Proxy Statement (or any amendment
thereof or supplement thereto) is first mailed to stockholders of the Company
and at the time of the Stockholder Meeting, contain any statement which, at such
time and in light of the circumstances under which it shall be made, is false or
misleading with respect to any material fact, or omit to state any material fact
necessary in order to make such statements made in Proxy Statement not false or
misleading. If at any time prior to Stockholder Meeting any event relating to
TSC or any of its Affiliates, officers or directors should be discovered by TSC
which should be set forth in a Supplement to the Proxy Statement, TSC shall
promptly inform the Company.
SECTION 3.03 Representations and Warranties of National Union. National
Union represents and warrants as follows:
(a) Organization. National Union is a corporation validly existing and
in good standing under the laws of the jurisdiction of its organization,
with all requisite power and authority to own, lease and operate its
properties and to conduct its business as now being conducted.
(b) Authority. National Union has (or will have at the time of such
act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a
party and to consummate the transactions contemplated thereby. The
execution, delivery and performance of each Transaction Document by
National Union and the consummation by National Union of the transactions
contemplated hereby and thereby have been duly authorized (or will have
been duly authorized at the time of such act) and no other proceedings on
the part of National Union are necessary to authorize any Transaction
Document or for National Union to consummate the transactions so
contemplated. Each Transaction Document to which National Union is or will
be a party is, or when executed and delivered will be, a valid and binding
agreement of such party, enforceable against National Union in accordance
with the terms thereof, assuming that each Transaction Document to which
National Union is a party is a valid and binding agreement of the Company
and each other Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by National Union of
each Transaction Document to which it is or will be a party or the
consummation by National Union of the transactions contemplated
thereby (A) will not result in a violation or breach of its articles
or certificate of incorporation or -- by-laws (or other organizational
documents) or (B) subject to the governmental filings and - other
matters referred to in clause (ii) below, will not result in a
violation or breach of (or give rise to any right of termination,
revocation, cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice or lapse
of time or both) under, or result in the creation of any Lien upon any
of the properties or assets of National Union or the Company and its
Subsidiaries under any judgment, order, decree, statute, law,
regulation or rule applicable to National Union.
(ii) Except for consents, approvals, orders, authorizations,
registrations, declarations or filings as may be required under, and
other applicable requirements of, the HSR Act (and filings after the
Closing, if any, under Regulation D, Section 13(d) and/or Section 16
of the Exchange Act), no consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity
is required with respect to National Union in connection with the
execution, delivery or performance by National Union of each
Transaction Document to which it is or will be a party or the
consummation by National Union of the transactions contemplated hereby
and thereby (except where the failure to obtain such consents,
approvals, orders or authorizations, or to make such registrations,
declarations, filings or agreements would not have a Material Adverse
Effect on National Union).
(d) Acquisition for Investment. Except as contemplated by Section
9.07, National Union is acquiring the Shares being purchased by it for its
own account for the purpose of investment and not with a view to or for
sale in connection with any distribution thereof, and National Union has no
present intention or plan to effect any distribution of Shares; provided
that the disposition of National Union's property shall at all times be and
remain within its control and subject to the provisions of this Agreement
and the Registration Rights Agreement. National Union is an "Accredited
Investor" within the meaning of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or other
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from National Union in connection with any of the
transactions contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by National Union
for inclusion in the Proxy Statement shall not, on the date the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders of the Company and at the time of the Stockholder Meeting,
contain any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to
make such statements made in Proxy Statement not false or misleading. If at
any time prior to Stockholder Meeting any event relating to National Union
or any of its Affiliates, officers or directors should be discovered by
National Union which should be set forth in a Supplement to the Proxy
Statement, National Union shall promptly inform the Company.
SECTION 3.04 Representations and Warranties of O&G. O&G represents and
warrants as follows:
(a) Organization. O&G is a corporation validly existing and in good
standing under the laws of the jurisdiction of its organization, with all
requisite power and authority to own, lease and operate its properties and
to conduct its business as now being conducted.
(b) Authority. O&G has (or will have at the time of such act) the
requisite corporate or other power and authority to execute, deliver and
perform each Transaction Document to which it is or will be a party and to
consummate the transactions contemplated thereby. The execution, delivery
and performance of each Transaction Document by O&G and the consummation by
O&G of the transactions contemplated hereby and thereby have been duly
authorized (or will have been duly authorized at the time of such act) and
no other corporate proceedings on the part of O&G are necessary to
authorize any Transaction Document or for O&G to consummate the
transactions so contemplated. Each Transaction Document to which O&G is or
will be a party is, or when executed and delivered will be, a valid and
binding agreement of such party, enforceable against O&G in accordance with
the terms thereof, assuming that each Transaction Document to which O&G is
a party is a valid and binding agreement of the Company and each other
Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by O&G of each
Transaction Document to which it is or will be a party or the
consummation by O&G of the transactions contemplated thereby (A) will
not result - in a violation or breach of its articles or certificate
of incorporation or by-laws (or other organizational documents) or (B)
subject to the governmental filings and other matters referred - to in
clause (ii) below, will not result in a violation or breach of (or
give rise to any right of termination, revocation, cancellation or
acceleration under or increased payments under), or constitute a
default (with or without due notice or lapse of time or both) under,
or result in the creation of any Lien upon any of the properties or
assets of O&G or the Company and its Subsidiaries under any judgment,
order, decree, statute, law, regulation or rule applicable to O&G.
(ii) Except for consents, approvals, orders, authorizations,
registrations, declarations or filings as may be required under, and
other applicable requirements of, the HSR Act (and filings after the
Closing, if any, under Regulation D, Section 13(d) and/or Section 16
of the Exchange Act), no consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity
is required with respect to O&G in connection with the execution,
delivery or performance by O&G of each Transaction Document to which
it is or will be a party or the consummation by O&G of the
transactions contemplated hereby and thereby (except where the failure
to obtain such consents, approvals, orders or authorizations, or to
make such registrations, declarations, filings or agreements would not
have a Material Adverse Effect on O&G).
(d) Acquisition for Investment. O&G is acquiring the Shares being
purchased by it for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and
O&G has no present intention or plan to effect any distribution of Shares;
provided that the disposition of O&G's property shall at all times be and
remain within its control and subject to the provisions of this Agreement
and the Registration Rights Agreement. O&G is an "Accredited Investor"
within the meaning of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or other
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from O&G in connection with any of the
transactions contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by O&G for
inclusion in the Proxy Statement shall not, on the date the Proxy Statement
(or any amendment thereof or supplement thereto) is first mailed to
stockholders of the Company and at the time of the Stockholder Meeting,
contain any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to
make such statements made in Proxy Statement not false or misleading. If at
any time prior to Stockholder Meeting any event relating to O&G or any of
its Affiliates, officers or directors should be discovered by O&G which
should be set forth in a Supplement to the Proxy Statement, O&G shall
promptly inform the Company.
ARTICLE IV
[Intentionally Omitted]
ARTICLE V
Covenants and Additional Agreements
SECTION 5.01 Pre-Closing Activities. From and after the date of this
Agreement until the Closing, each of the Company and Purchasers shall act with
good faith towards each other, and shall use all commercially reasonable efforts
to take or cause to be taken all actions necessary, proper or advisable to
consummate the transactions contemplated by the Transaction Documents and
neither the Company nor any Purchaser will take any action that would prohibit
or materially impair its ability to consummate the transactions contemplated by
the Transaction Documents.
SECTION 5.02 Covenants of the Company. During the period from the date of
this Agreement and continuing until the Closing, the Company agrees as to itself
and the Subsidiaries that, except as provided in Section 5.02 of the Disclosure
Schedule, or to the extent that Purchasers otherwise consent in writing:
(a) Ordinary Course. The Company will conduct its business in the
ordinary course in substantially the same manner as presently conducted and
the Company will use commercially reasonable efforts to keep available the
services of the current officers and employees and to preserve the
relationships with customers, suppliers and others having business dealings
with the Company.
(b) Other Transactions. The Company will not, nor will it permit any
of the Subsidiaries to, do any of the following (except as otherwise
specifically contemplated herein or in any other Transaction Document):
(i) amend its Articles of Organization, By-laws or other
organizational documents (except for immaterial amendments to the
Articles of Organization or By-laws of any Subsidiaries, provided such
amendments in no way materially and adversely affect Purchasers or the
rights granted or to be granted to the Purchasers under any
Transaction Document);
(ii) declare or pay any cash or non-cash dividend or make any
cash or non-cash distribution with respect to any securities of the
Company (other than payment of dividends in kind pursuant to the
Series B Preferred Stock);
(iii) redeem or otherwise acquire any shares of its capital stock
or issue any capital stock (except upon exercise of options issued or
agreed to be issued prior to the date hereof under a Company Stock
Plan) or any option, warrant or right relating thereto;
(iv) incur any liabilities, obligations or indebtedness for
borrowed money or guarantee any such liabilities, obligations or
indebtedness, other than in the ordinary course of business consistent
with past practice and as permitted under the Credit Facility;
(v) permit, allow or suffer any assets or properties of the
Company to be subject to any Lien other than Permitted Liens;
(vi) guarantee or otherwise become contingently liable for any
obligation of any third party other than in the ordinary course of
business;
(vii) make any change in any method of accounting or accounting
practice or policy, except as may be required by GAAP;
(viii) enter into any agreement or take any action in violation
of the terms of this Agreement or any of the other Transaction
Documents;
(ix) settle any material tax audit, make or change any tax
election or amend any Tax Returns; or
(x) agree, whether in writing or otherwise, to do any of the
foregoing.
(c) Employee Benefits. Except in the ordinary course of business and
consistent with past practice (which shall include normal periodic
performance reviews and related benefit increases and the increases
approved at the December 8, 1999 meeting of the Board of Directors) or
pursuant to the existing terms of any collective bargaining agreement, the
Company will not, nor will it permit any of the Subsidiaries to (i)
increase in any manner the compensation of any of the officers or other
employees of the Company or its Subsidiaries; (ii) adopt, amend, terminate,
or increase liability with respect to any Company Plan or Company Benefit
Arrangement or commit to do so; or (iii) enter into, or negotiate, any
collective bargaining agreement with respect to employees of the Company or
its Subsidiaries except as required by law, in which case the Company or
such Subsidiary shall first notify Purchasers.
SECTION 5.03 HSR. Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to consummate
and make effective all necessary filings required pursuant to the HSR Act as
soon as commercially practicable after the date of this Agreement, and shall use
their best efforts to obtain the early termination of the waiting period
thereunder, provided that neither the Company nor any Purchaser shall be
required to agree to dispose of or hold separate any material portion of its
business or assets.
SECTION 5.04 [Intentionally Omitted]
SECTION 5.05 Stockholder Approvals; Proxy Statement.
(a) The Company shall call a meeting of its stockholders (the
"Stockholder Meeting") for the purpose, among others, of obtaining
stockholder approvals for: (i) an amendment to the Articles of Organization
increasing the number of authorized shares of Common Stock to at least as
many shares of Common Stock as are necessary to consummate the transaction
contemplated hereby and (ii) the issuance and sale (the "Issuance") of the
Shares to Purchasers and the exchange of the Series B Preferred Stock for
shares of Common Stock as contemplated by Section 6.03(c) (the "Stockholder
Meeting Proposals"). The Stockholder Meeting shall be held as soon as
practicable but in no event later than the Outside Date. For purposes of
this Agreement, "Stockholder Approvals" shall mean, as to clause (i), the
affirmative vote of the holders of a majority of the shares of the Equity
Securities entitled to vote thereon and, as to clause (ii), the affirmative
vote of the holders of a Disinterested Majority of the Equity Securities
entitled to vote thereon. Where so required by applicable Massachusetts law
or the Articles of Organization, Stockholder Approvals shall mean the
separate vote of each class of stock entitled to vote thereon.
(b) The Company will prepare and file with the SEC a proxy statement
relating to the Stockholder Meeting (as amended or supplemented and
including documents incorporated by reference therein, the "Proxy
Statement") and shall use its reasonable best efforts to respond to any
comments of the SEC or its staff and to cause the Proxy Statement to be
cleared by the SEC. The Company shall notify Purchasers of the receipt of
any comments from the SEC or its staff and of any request by the SEC or its
staff for amendments or supplements to the Proxy Statement or for
additional information and shall supply Purchasers and their counsel with
copies of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to the Proxy Statement. The Company shall give
Purchasers and their counsel the opportunity to review the Proxy Statement
prior to its being filed with the SEC and shall give Purchasers and their
counsel the opportunity to review all amendments and supplements to the
Proxy Statement and all responses to requests for additional information
and replies to comments prior to their being filed with, or sent to, the
SEC. Each of the Company and Purchasers agrees to use reasonable best
efforts, after consultation with the other party hereto, to respond
promptly to all such comments of and requests by the SEC. After the Proxy
Statement has been cleared by the SEC, the Company shall mail the Proxy
Statement to the stockholders of the Company. If at any time prior to the
Stockholder Meeting there shall occur any event that should be set forth in
an amendment or supplement to the Proxy Statement, the Company will prepare
and mail to its stockholders such an amendment or supplement.
(c) The Proxy Statement will not, at the date mailed to the Company's
stockholders and at the date of the Stockholder Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Proxy Statement will comply as to form in all material respects with the
provisions of the Exchange Act and the rules and regulations thereunder,
except that no representation is made by the Company with respect to
statements made therein as to information concerning Purchasers or their
Affiliates supplied in writing by Purchasers or any of their Affiliates
specifically for inclusion in the Proxy Statement.
(d) Unless this Agreement has been terminated (i) pursuant to Section
7.01(d)(ii) (based upon a failure of the condition set forth in Section
6.02(d)), or (ii) pursuant to Section 7.01(d)(iii) based upon the existence
of a Superior Transaction Proposal that the Board intends to accept, the
Board and the Special Committee shall recommend that the Company's
stockholders approve the Stockholder Meeting Proposals and the Company
shall use its best efforts to obtain the necessary approvals by its
stockholders of the Stockholder Meeting Proposals.
SECTION 5.06 Stock Exchange Listing. The Company shall use its commercially
reasonable efforts to cause Purchasers to receive, prior to Closing, assurance
from the American Stock Exchange (the "Exchange"), in a form reasonably
satisfactory to the Purchasers, that: (a) in accordance with the rules of the
Exchange, all Shares will be eligible for listing on the Exchange; and (b)
consummation of the transactions contemplated herein or in any other Transaction
Document will not cause any securities of the Company already listed on the
American Stock Exchange to lose their listing privileges.
SECTION 5.07 Transaction Proposals.
(a) For purposes of this Agreement, "Transaction Proposal" means any
inquiry, proposal or offer from any Person (other than a Person that is an
Affiliate of the Purchasers) relating to (i) any purchase or other
acquisition from the Company of assets representing 20% or more of the net
revenues, net income or profits of the Company and its Subsidiaries, taken
as a whole, (ii) any purchase or other acquisition of any class of
securities of the Company for a purchase price in excess of $20 million, or
(iii) any merger, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving the Company (or
any subsidiary whose business constitutes 20% or more of the net revenues,
net income or assets of the Company and its subsidiaries, taken as a
whole). For purposes of this Section 5.07, separate Transaction Proposals
by Affiliates or by Persons in a "group" (as defined in the rules
promulgated under Section 13 of the Exchange Act), as well as separate
Transaction Proposals that are adopted by the Company as part of a plan of
financing or capitalizing the Company shall be aggregated and treated as a
single proposal for purposes of determining whether such proposal or
proposals exceed the thresholds set forth in this Section 5.07(a).
(b) At least ten (10) days prior to either (x) accepting any
Transaction Proposal or (y) any change by the Board or the Special
Committee in their respective recommendations concerning the Stockholder
Meeting Proposals (if following the receipt of any Transaction Proposal),
the Company shall advise Purchasers orally and in writing of such
Transaction Proposal and the material terms and conditions of such
Transaction Proposal and the identity of the Person making any such
Transaction Proposal. During such ten day period, the Company shall
negotiate in good faith to determine whether Purchasers can or are willing
to make a proposal that is superior to the Transaction Proposal. Subject to
complying with the foregoing provisions of this Section 5.07, the Special
Committee and its representatives and advisors on behalf of the Company may
solicit Transaction Proposals and furnish or cause the Company to furnish
information with respect to the Company and its Subsidiaries to any Person
and may participate in discussions or negotiations regarding any
Transaction Proposal.
SECTION 5.08 Access and Information.
(a) Access. From the date hereof until the Closing (and in any event
subject to the provisions of Section 5.09(a)), the Company shall permit
Purchasers (and their designated representatives) to visit and inspect any
of the properties of the Company and the Subsidiaries, including the books
and records of the Company and the Subsidiaries (and to make extracts and
copies therefrom), and to consult with respect to and discuss the affairs,
businesses, finances, operations and accounts of the Company and the
Subsidiaries with the officers, directors, employees, affiliates and agents
of such entities, all at such reasonable times and as often as Purchasers
may reasonably request.
(b) Information. The Company covenants that so long as any Purchaser
owns shares of Common Stock equal in number to at least 5% of the Shares
sold to it onI the Closing Date, the Company will deliver to such Purchaser
the following:
(i) As soon as practicable and in any event within 45 days after
the end of each quarterly period (other than the last quarterly
period) in each fiscal year, (A) a consolidated statement of income
and - consolidated statements of changes in financial position and
cash flows of the Company and the Subsidiaries for such quarterly
period and for the period from the beginning of the current fiscal
year to the end of such quarterly period, and (B) a consolidated
balance sheet of the - Company and the Subsidiaries as at the end of
such quarterly period, setting forth in each case, in comparative
form, figures for the corresponding periods in the preceding fiscal
year and corresponding figures for the budget for such quarterly
period, all in reasonable detail and certified by an authorized
financial officer of the Company, subject to changes resulting from
year-end adjustments; provided, however, that delivery pursuant to
clause (iii) below of a copy of the Quarterly Report on Form 10-Q of
the Company for such quarterly period filed with the SEC shall be
deemed to satisfy the requirements of this clause (i);
(ii) As soon as practicable and in any event within 120 days
after the end of each fiscal year, (A) a - consolidated statement of
income and consolidated statements of changes in financial position
and cash flows of the Company and the Subsidiaries for such year, and
(B) a consolidated - balance sheet of the Company and the Subsidiaries
as of the end of such year, setting forth in each case, in comparative
form, corresponding consolidated figures from the preceding annual
audit and corresponding figures for the budget for such fiscal year,
all in reasonable detail together with an opinion directed to the
Company of independent public accountants of recognized standing
selected by the Company; provided, however, that delivery pursuant to
clause (iii) below of a copy of the Annual Report on Form 10-K of the
Company for such fiscal year filed with the SEC shall be deemed to
satisfy the requirements of this clause (ii);
(iii)Promptly upon transmission thereof, copies of all financial
statements, proxy statements, notices and reports as it shall send to
its public stockholders and copies of all registration statements
(without exhibits), other than on Form S-8 or any similar successor
form, and all reports which it files with the SEC (or any governmental
body or agency succeeding to the functions of the SEC);
(iv) Promptly upon receipt thereof, copies of all reports
submitted to the Company by independent public accountants in
connection with each annual, interim or special audit of the books of
the Company or any Subsidiary made by such accountants, including the
comment letter submitted by such accountants to management in
connection with their annual audit; and
(v) With reasonable promptness, such other financial data as any
Purchaser may reasonably request.
SECTION 5.09 Confidentiality and Publicity.
(a) Confidentiality. Each of the Purchasers recognizes and
acknowledges that it has in the past, currently has, and in the future may
possibly have, access to certain confidential information of the Company.
Each Purchaser agrees that it will not disclose confidential information
with respect to the Company to any Person for any purpose or reason
whatsoever, except to authorized representatives of such Purchaser and to
counsel and other advisers, provided, however, that such advisers (other
than counsel) agree to the confidentiality provisions of this subsection
5.09(a), unless (i) such information is publicly known or becomes known to
the public generally through no fault of any of the Purchasers, (ii) is
independently developed by the Purchasers without the use of the Company's
confidential information, (iii) is disclosed without similar restrictions
to a third party by the Company or a Subsidiary, or (iv) disclosure is
required by law (including securities law disclosure requirements and stock
exchange rules), or the order of any governmental authority under color of
law, or to enforce its rights under this Agreement; provided, however, that
prior to disclosing any information pursuant to this Section 5.09(a), a
Purchaser shall, if reasonably possible, give prior written notice thereof
to the Company and provide the Company with the opportunity to contest such
disclosure.
(b) Publicity. Prior to Closing, the Company and Purchasers will
consult with each other before issuing any press release or otherwise
making any public statements with respect to the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or
by obligations pursuant to any listing agreement with any securities
exchange.
SECTION 5.10 Restrictions. Each Purchaser covenants and agrees with the
Company that such Purchaser will not dispose of any of such Purchaser's shares
of the Shares except pursuant to (a) an effective registration statement under
the Act or (b) an applicable exemption from registration under the Act. In
connection with any sale by a Purchaser pursuant to clause (b) of the preceding
sentence, such Purchaser shall furnish to the Company an opinion of counsel
reasonably satisfactory to the Company to the effect that such exemption from
registration is available in connection with such sale.
SECTION 5.11 Further Assurances. Following the Closing Date, the Company
shall, and shall cause each of the Subsidiaries to, from time to time, execute
and deliver such additional instruments, documents, conveyances or assurances
and take such other actions as shall be necessary, or otherwise reasonably be
requested by Purchasers, to confirm and assure the rights and obligations
provided for in this Agreement and the Transaction Documents and render
effective the consummation of the transactions contemplated hereby and thereby.
SECTION 5.12 Directors' and Officers' Indemnification and Insurance.
(a) The provisions with respect to indemnification that are set forth
in the bylaws of the Company shall not be amended, repealed or otherwise
modified for a period of six years from the Closing Date in any manner that
would affect adversely the rights thereunder of individuals who are or, at
any time prior to the Closing Date, were directors, officers, employees or
agents of Company with respect to claims arising from facts or events that
occurred at or prior to the Closing.
(b) Prior to the Closing, the Company shall have offered each director
of the Company the opportunity to enter into an indemnification agreement
in a form reasonably acceptable to such director (the "Indemnification
Agreements").
(c) For a period of six years after the Closing Date, the Company
shall maintain in effect the directors' and officers' liability insurance
policies maintained by the Company immediately prior to the Closing;
provided, however, that the Company may substitute therefor policies of at
least the same coverage and amounts containing terms and conditions which
are not materially less advantageous with respect to claims arising from
facts or events which occurred at or before the Closing; provided further,
however, that, in no event shall the Company be required to expend in any
one year in excess of 125% of the annual premium currently paid by the
Company for such coverage, which current premium amount is set forth on the
Disclosure Schedule and if the premium for such coverage exceeds such
amount, the Company shall purchase a policy with the greatest coverage
available for such 125% of the annual premium.
(d) If the Company or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or
merger or (ii) transfers all or substantially all of its properties and
assets to any Person, then and in each such case, proper provision shall be
made so that the successors and assigns of the Company assume the
obligations set forth in this Section 5.12.
(e) The foregoing provisions of Section 5.12 are obligations of the
Company and not of any of the Purchasers.
SECTION 5.13 Shareholders Agreement. Each of the parties agrees (i) that
they will enter into the Shareholders Agreement, (ii) that the Shareholders
Agreement shall not become effective prior to the Closing and (iii) that the
Exchange Agreement to be entered into by and between the Company and holders of
Series B Preferred Stock shall not restrict or impede the parties thereto from
considering or accepting any Superior Transaction Proposal.
ARTICLE VI
Conditions Precedent
SECTION 6.01 Conditions to Each Party's Obligations. The obligations of the
Company and each Purchaser to consummate the transactions contemplated to occur
at the Closing shall be subject to the satisfaction prior to the Closing of each
of the following conditions, each of which may be waived only if it is legally
permissible to do so:
(a) HSR and Other Approvals. Any applicable waiting period under the
HSR Act relating to the transactions contemplated hereby shall have expired
or been terminated, and all other material authorizations, consents, orders
or approvals of, or regulations, declarations or filings with, or
expirations of applicable waiting periods imposed by, any Governmental
Entity (including, without limitation, any foreign antitrust filing)
necessary for the consummation of the transactions contemplated hereby,
shall have been obtained or filed or shall have occurred.
(b) No Litigation, Injunctions, or Restraints. No statute, rule,
regulation, executive order, decree, temporary restraining order,
investigation, suit, proceeding, preliminary or permanent injunction or
other order shall have been enacted, entered, promulgated, enforced or
issued by any Governmental Entity that presents a substantial risk of the
restraint or prohibition of the transactions contemplated by this Agreement
or any of the Transaction Documents or the obtaining of material damages or
other relief from any one or more of the Purchasers in connection
therewith.
(c) Stockholder Approvals. The Stockholder Approvals have been
obtained.
(d) Management Agreement Amendment. The management agreement by and
among the Company, TSC and Ronald N. Tutor dated January 17, 1997, as
amended on December 23, 1998 and December 31, 1999 (the "Management
Agreement Amendment"), shall be in full force and effect.
SECTION 6.02 Conditions to the Obligations of the Company. The obligations
of the Company to consummate the transactions contemplated to occur at the
Closing shall be subject to the satisfaction or waiver thereof by the Company
prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of each Purchaser that are qualified as to materiality shall be true and
correct, and those that are not so qualified shall be true and correct in
all material respects, as of the date of this Agreement and as of the time
of the Closing as though made at and as of such time, except to the extent
such representations and warranties expressly relate to an earlier date (in
which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those that are not so qualified
shall be true and correct in all material respects, on and as of such
earlier date) and the Company shall have received a certificate signed by
an authorized officer of each Purchaser to such effect.
(b) Performance of Obligations of Purchasers. Each Purchaser shall
have performed or complied in all material respects with all obligations
and covenants required to be performed or complied with by such Purchaser
under this Agreement, and the Company shall have received a certificate
signed by the chief executive officer and chief financial officer of each
Purchaser to such effect.
(c) Closing Deliveries. Purchasers shall have delivered to the Company
on or before the Closing the following:
(i) The Registration Rights Agreement, to be dated as of the date
of the Closing, in substantially the form of Exhibit 6.02(c)(i),
executed by Purchasers;
(ii) The Shareholders Agreement, to be dated as of the date of
the Closing, substantially in the form of Exhibit 6.02(c)(ii),
executed by Purchasers;
(iii)Executed and conformed copies of such other certificates,
lett rs and documents as the Company may reasonably request and as are
customary for transactions such as those contemplated by this
Agreement;
(iv) $10 million by TSC by wire transfer of immediately available
funds as its share of the Purchase Price;
(v) $10 million by O&G by wire transfer of immediately available
funds as its share of the Purchase Price;
(vi) $20 million by National Union by wire transfer of
immediately available funds as its share of the Purchase Price; and
(vii)a Certificate of the Secretary or Assistant Secretary of
each of the Purchasers dated as of the Closing Date certifying: (1)
that attached thereto is a true and complete copy of the By-Laws, or -
comparable organization document, of such Purchaser as in effect on
the date of such certification; (2) that attached thereto is a true
and complete copy of all resolutions adopted - by the Board of such
Purchaser authorizing the execution, delivery and performance of the
Agreement, and that all such resolutions are in full force in effect
and are all the resolutions adopted in connection with the
transactions contemplated by this Agreement; (3) - that attached
thereto is a true and complete copy of such Purchasers' articles of
incorporation, or comparable organization document, as in effect on
the date of such certification; and (4) to the incumbency and specimen
signature of certain officers of the - Company.
(d) Bring Down of Fairness Opinion. The Special Committee shall have
affirmed its recommendation to the Board that the Company execute and
perform this Agreement after the delivery of a "bring down" fairness
opinion by the Special Committee's financial advisor in a form reasonably
satisfactory to the Special Committee as of a date no earlier than three
days prior to the Closing.
SECTION 6.03 Conditions to the Obligations of Purchasers. The obligations
of each Purchaser to consummate the transactions contemplated to occur at the
Closing shall be subject to the satisfaction or waiver thereof prior to the
Closing of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company set forth in this Agreement that are qualified as to
materiality shall be true and correct, and those that are not so qualified
shall be true and correct in all material respects, as of the date of this
Agreement and as of the time of the Closing as though made at and as of
such time, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and
warranties that are qualified as to materiality shall be true and correct,
and those that are not so qualified shall be true and correct in all
material respects, on and as of such earlier date), and Purchasers shall
have received a certificate signed by the chief executive officer and chief
financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company shall have
performed or complied in all material respects with all obligations and
covenants required to be performed or complied with by the Company under
this Agreement, and Purchasers shall have received a certificate signed by
the chief executive officer and chief financial officer of the Company to
such effect.
(c) Series B Preferred Stock. Holders of the Series B Preferred Stock
shall have agreed to exchange no less than 100% of the then outstanding
face amount of those securities (including accrued but unpaid dividends) in
exchange for Common Stock at an exchange price of $5.50 per share of Common
Stock. In addition, the holders of the Series B Preferred Stock shall have
approved the amendments, revisions and waivers to the certificate of vote
for the Series B Preferred Stock and the Stock Purchase and Sale Agreement,
dated as of July 24, 1996, by and among Richard C. Blum & Associates, L.P.,
PB Capital Partners, L.P., and Perini Corporation, as amended (the "Series
B Purchase Agreement"), set forth on Exhibit 6.03(c).
(d) By-Law Amendments. The By-Laws shall have been amended and
restated in accordance with Exhibit 6.03(d) and such amendments (the
"By-Law Amendment") shall have been approved and made effective by the
Board, the Executive Committee and the holders of the Series B Preferred
Stock, subject to Closing.
(e) Due Diligence. Each Purchaser (other than TSC) shall be fully
satisfied in its sole discretion with the results of its review of, and its
due diligence investigations with respect to, the business, operations,
affairs, prospects, properties, assets, existing and potential liabilities,
obligations, profits and conditions (financial or otherwise) of the Company
(including the Disclosure Schedule). A Purchaser shall be deemed to be so
satisfied unless it notifies the Company in writing at or prior to 11:59
p.m., Eastern Time, on the date that is fourteen (14) calendar days after
the date of this Agreement (the "Diligence Termination Time") that it is
terminating this Agreement pursuant to Section 7.01(c)(iv) because it is
not so satisfied. Until the Closing, the Company shall (and shall cause
each of the Subsidiaries to) cooperate promptly and fully with Purchasers'
officers, employees, counsel, accountants and other authorized
representatives (the "Representatives") and shall afford such
Representatives reasonable access during normal business hours to all of
its (1) sites, properties, books, contracts and records and personnel and
advisers (who will be instructed by the Company to cooperate), (2) such
additional financial and operating data and other information as to its
business and properties as the Purchasers may from time to time reasonably
request, including without limitation, access upon reasonable request to
the Company's Representatives, major customers, vendors, suppliers and
creditors for due diligence inquiry. The Company shall (and shall cause
each of the Subsidiaries to) furnish promptly to the Purchasers all
information concerning its business, properties and personnel as the
Purchasers or their Representatives may reasonably request on or before the
Diligence Termination Time; provided that any review will be conducted in a
way that will not interfere unreasonably with the conduct of the Company's
business. The Purchasers will keep all information and documents obtained
pursuant to this Section 6.03(e) on a confidential basis subject to Section
5.09(a).
(f) Poison Pill. The Rights Agreement shall be in full force and
effect and not have been otherwise amended, modified or supplemented on or
after the date of this Agreement; provided, however, that the Board shall
have amended or waived provisions of the Rights Agreement such that (i)
neither the execution nor the delivery of any Transaction Document nor the
fulfillment of the terms of any Transaction Document by the Company or any
of the Purchasers nor the issuance of Shares as herein and therein
contemplated will cause there to be a Stock Acquisition Date or a
Distribution Date and (ii) the Purchasers will not be deemed to be Adverse
Persons (as those terms are defined in the Rights Agreement).
(g) Credit Facility. The bank loan syndicate representing the lenders
to the Company pursuant to the Amended and Restated Credit Agreement, dated
as of January 17, 1997, among the Company, the Banks listed therein and
Morgan Guaranty Trust Company of New York, as Agent, as amended from time
to time (the "Credit Facility"), shall have agreed to convert the Credit
Facility to a term loan and revolving credit facility, substantially in
accordance with the terms set forth on Exhibit 6.03(g)
(h) Closing Deliveries. The Company shall have delivered to Purchasers
on or before the Closing the following:
(i) Opinion of Goodwin, Procter & Hoar LLP, dated as of the
Closing Date, in form reasonably satisfactory to Purchasers;
(ii) The Registration Rights Agreement, executed by the Company;
(iii) The Shareholders Agreement, executed by the Company;
(iv) Certificate of the Secretary or Assistant Secretary of the
Company dated as of the Closing Date certifying: (i) that attached
thereto is a true and complete copy of the By-Laws of the - Company as
in effect on the date of such certification; (ii) that attached
thereto is a true -- and complete copy of all resolutions adopted by
the Board authorizing the execution, delivery and performance of the
Agreement, the issuance, sale and delivery of the Shares, and that all
such resolutions are in full force in effect and are all the
resolutions adopted in connection with the transactions contemplated
by this Agreement and the Transaction Documents; (iii) that attached
thereto is a true and complete copy of the Articles of Organization as
in effect on the date of such certification; and (iv) to the
incumbency and specimen signature of certain officers of the Company;
(v) Certificates representing the number of the shares of Common
Stock to be purchased, as described in Section 2.02; and
(vi) Executed and conformed copies of such other certificates,
letters and documents as Purchasers may reasonably request and as are
customary for transactions such as those contemplated by this
Agreement and the Transaction Documents.
(i) Tax Matters. The Company shall have received an opinion in the
form of Exhibit 6.03(i) hereto, from the Company's independent tax advisors
that a "change in ownership" within the meaning of Section 382 of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations
promulgated thereunder, shall not occur as a result of (i) the sale of
9,411,765 shares of Common Stock for $40 million, (ii) the exchange of 100%
of the Series B Preferred Stock for Common Stock at a price of $5.50 per
share, or (iii) any other transaction or occurrence prior to the Closing.
(j) Corporate Proceedings. All corporate proceedings of the Company in
connection with the transactions contemplated by this Agreement and the
Transaction Documents, and all documents and instruments incident thereto,
shall be satisfactory in form and substance to Purchasers and its counsel,
and Purchasers and its counsel shall have received all such documents and
instruments, or copies thereof, certified or requested, as may be
reasonably requested. The Special Committee of the Board shall have
recommended the execution and performance of this Agreement and the
Transaction Documents to the full Board after the delivery of a fairness
opinion by the Special Committee's financial advisor in a form reasonably
satisfactory to the Special Committee and the full Board shall have
approved such execution and performance.
(k) Material Adverse Effect. No event, change or development shall
exist or have occurred since the date hereof which, individually or in the
aggregate with other events, changes or developments, has had or is
reasonably likely to have a Material Adverse Effect on the Company and the
Subsidiaries, taken as a whole; provided, however, that Material Adverse
Effect with respect to this Section 6.03(k) shall not include (i) changes
in general industry, economic, regulatory, political or stock market
conditions that affect the Company (or the markets in which the Company
competes) in a manner not disproportionate to the manner in which such
conditions affect other companies in the industries or markets in which the
Company competes; (ii) any circumstances or events (including, without
limitation, any loss of personnel, loss of customers, loss of suppliers or
the delay or cancellation of any orders for products) arising primarily out
of or resulting primarily from actions contemplated by Company and the
Purchasers in connection with this Agreement and/or the transactions
contemplated hereby; or (iii) changes in GAAP.
(l) Chapter 110F. The Issuance of the Shares hereunder shall have been
exempted from the provisions of Chapter 110F of the Massachusetts General
Laws.
(m) Listing. The Shares shall have been approved for listing on the
American Stock Exchange, subject only to official notice of issuance, as
required.
(n) Fundamental Corporate Changes. Except as specifically contemplated
hereby, the Company shall not have caused or permitted (i) any change to
the composition of the Executive Committee of the Board, or (ii) any change
to be made to the duties, rights and responsibilities of the Chairman.
Ronald S. Tutor shall be serving as Chairman of the Company.
(o) Additional Conditions.
(i) As to TSC, O&G and National Union shall have delivered at the
Closing their respective portions of the Purchase Price, each of O&G
and National Union shall have executed and delivered the Shareholders
Agreement at the Closing.
(ii) As to O&G, TSC and National Union shall have delivered at
the Closing their respective portions of the Purchase Price, each of
TSC and National Union shall have executed and delivered the
Shareholders Agreement at the Closing.
(iii)As to National Union, O&G and TSC shall have delivered at
the Closing their respective portions of the Purchase Price, each of
O&G and TSC shall have executed and delivered the Shareholders
Agreement at the Closing.
(p) Certain Events. There shall not be in effect on the Closing Date
(i) any suspension or limit of trading in securities generally on the
American Stock Exchange (including automatic halt in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), (ii) the imposition generally of minimum or maximum
prices on such exchange or on The Nasdaq Stock Market or additional
material governmental restrictions, in either case not in force on the date
of this Agreement, by such exchange or by order of the SEC or the National
Association of Securities Dealers or any court or other governmental
authority, (iii) the declaration of any general banking moratorium by
either Federal or New York State authorities, or (iv) any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any
outbreak or escalation of hostilities or declaration by the United States
of a national emergency or war or other calamity or crisis, the effect of
any of which of the items referred to in clauses (i), (ii), (iii) and (iv)
is such as to make it, in reasonable judgment of any Purchaser,
impracticable or inadvisable to acquire the Shares on the terms and in the
manner contemplated by this Agreement.
ARTICLE VII
Termination
SECTION 7.01 Termination. This Agreement may be terminated at any time
prior to the Closing, whether before or after the Stockholder Approvals have
been obtained:
(a) by mutual written consent of all of the Purchasers and the Company;
(b) by any Purchaser or the Company:
(i) if the Closing shall not have occurred prior to April 5,
2000, sixty days from the date of this Agreement (the "Outside Date");
provided, however, that the right to terminate this Agreement pursuant
to this clause (i) shall not be available to any party whose failure
to fulfill any obligation under this Agreement results in the failure
of the Closing to occur; and provided further, that the Outside Date
shall be extended by no more than sixty (60) days in the event that
the conditions to the Purchasers' obligations to close cannot be
satisfied due to events that are not within the control of, and have
not been caused by, the Company or the Special Committee, for which
purposes delays caused by review or comments by the SEC shall not be
deemed to have been within the control of or caused by the Company or
the Special Committee; or
(ii) if the Stockholder Approvals shall not have been obtained
notwithstanding the holding of a vote on the Stockholder Meeting
Proposals at the Stockholder Meeting (including any adjournment or
postponement) contemplated by Section 5.05 (provided that the right to
terminate this Agreement under this Section shall not be available to
any party seeking termination who at the time is in breach of or has
failed to fulfill its obligations under this Agreement); or
(iii)if there shall be any statute, law, regulation or rule that
makes consummating the transactions contemplated hereby illegal or if
any court or other Governmental Entity of competent jurisdiction shall
have issued a judgment, order, decree or ruling, or shall have taken
such other action restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby and such
judgment, order, decree or ruling shall have become final and
non-appealable (provided that, the party seeking to terminate pursuant
to this Section shall have used commercially reasonable efforts to
have any such order, decree, ruling or other action vacated or
lifted);
(c) by any Purchaser:
(i) if the Company shall have failed to perform in any material
respect any of its obligations hereunder or shall have breached in any
respect any representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and the Company has
failed to perform such obligation or cure such breach, within 30 days
of its receipt of written notice thereof from such Purchaser, and such
failure to perform shall not have been waived in accordance with the
terms of this Agreement; or
(ii) if the Board or any committee thereof withdraws or modifies
(or publicly announces its intention to do so, or resolves to do so)
in a manner adverse to Purchasers (as determined by any Purchaser in
its reasonable judgment) its approval or recommendation of this
Agreement or the transactions contemplated hereby or approves or
recommends a Transaction Proposal; or
(iii)if any of the conditions set forth in Section 6.01 (other
than Section 6.01(c)) or 6.03 shall become impossible to fulfill
(other than as a result of any breach by such Purchaser of the terms
of this Agreement) and shall not have been waived in accordance with
the terms of this Agreement; or
(iv) if any Purchaser (other than TSC) is not satisfied with the
Company (including as to any matters contemplated by the Disclosure
Schedules or the Filed Company SEC Documents) as a result of its due
diligence review and has given the notice in the manner required by
Section 6.03(e);
(d) by the Company:
(i) if any of the Purchasers shall have failed to perform in any
material respect any of their obligations hereunder or shall have
breached in any respect any representation or warranty contained
herein qualified by materiality or shall have breached in any material
respect any representation or warranty not so qualified, and
Purchasers have failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from the
Company, and such failure to perform shall not have been waived in
accordance with the terms of this Agreement; or
(ii) if any of the conditions set forth in Section 6.01 (other
than Section 6.01(c)) or 6.02 shall become impossible to fulfill
(other than as a result of any breach by the Company of the terms of
this Agreement) and shall not have been waived in accordance with the
terms of this Agreement; or
(iii)upon ten (10) days written notice to Purchasers, if all of
the following conditions have been met: (x) the Company has complied
with the terms of Section 5.07, (y) the Company has received a
Transaction Proposal that the Special Committee has concluded, based
on the advice of a nationally-recognized investment banking firm
(which shall include Houlihan), is superior to the terms set forth
herein (a "Superior Transaction Proposal"), and (z) the Special
Committee determines in good faith, after consultation with outside
counsel, that it is advisable to do so in order to comply with its
fiduciary duties to the Company's stockholders under applicable law.
SECTION 7.02 Effect of Termination. In the event of termination of this
Agreement by either the Company or any Purchaser as provided in Section 7.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of either Purchaser or the Company, other
than the provisions of this Section 7.02, Section 5.09(a) and Article IX and
except to the extent that such termination results from the willful and material
breach by a party of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
SECTION 7.03 Termination by One Purchaser. Notwithstanding the provisions
of this Article VII, the exercise by any one Purchaser of its termination rights
under Section 7.01 shall relieve such Purchaser of all obligations under this
Agreement (other than those set forth in this Section 7.03, Section 5.09(a) and
Section 9.08) but shall not result in the termination of this Agreement if,
within five Business Days of receipt of such termination notice by the other
Purchasers, one or more of the other Purchasers shall agree to an amendment to
Exhibit 2.01 pursuant to which all Shares proposed to be purchased under this
Agreement are purchased by the other Purchasers (and provide a copy of such
amended Exhibit 2.01 to the Company).
ARTICLE VIII
Indemnification
SECTION 8.01 Indemnification of Purchasers. The Company covenants and
agrees to defend, indemnify and hold harmless each of the Purchasers, their
Affiliates (other than the Company and any of its Subsidiaries), and their
respective officers, directors, partners, employees, agents, advisers and
representatives (collectively, the "Purchaser Indemnitees") from and against,
and pay or reimburse the Purchaser Indemnitees for, any and all Indemnifiable
Losses resulting from or based on (or allegedly resulting from or based on):
(a) any litigation or claims (including by any stockholders of the
Company in connection with any derivative actions, but not including any
litigation or claims brought or made by any of the Purchaser Indemnitees
under this clause (a)) resulting from or based on (or allegedly resulting
from or based on) any of the transactions contemplated by the Transaction
Documents, provided that the indemnity provided in this clause (a) shall
not include (i) losses resulting from or based on the acts or omissions of
Purchaser Indemnitees following the Closing, or (ii) claims resulting from
or based on a breach by any of the Purchasers of its obligations,
representations, warranties, agreements or covenants under this Agreement;
or (iii) claims resulting from any contract, obligation or other agreement
between a third party claimant (other than a stockholder, whether common or
preferred, bondholder, lender, director or officer of the Company (or an
Affiliate of any of the foregoing)) and any Purchaser; provided, however,
that in no such case shall this Section 8.01(a) be construed to limit the
indemnity rights that a Purchaser Indemnitee may have in any other
Transaction Document; or
(b) any breach by the Company of any representation, warranty,
covenant or obligation of the Company hereunder or under any other
Transaction Document.
The Company shall reimburse the Purchaser Indemnitees for any legal or other
expenses incurred by such Purchaser Indemnitees in connection with investigating
or defending any such Indemnifiable Losses as such expenses are incurred.
Notwithstanding the foregoing provisions of this Section 8.01, the Company shall
not be liable to a Purchaser Indemnitee in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or omission made in the Proxy Statement, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by such Purchaser Indemnitee (or its Affiliates),
specifically for use in the preparation thereof.
SECTION 8.02 Indemnification Procedures. Promptly after receipt by a
Purchaser Indemnitee of notice of the commencement of any action or the written
assertion of any claim, such Purchaser Indemnitee shall, if a claim in respect
thereof is to be made against the Company, as the case may be (the "Indemnifying
Person"), notify the Indemnifying Person in writing of the commencement or the
written assertion thereof. Failure by a Purchaser Indemnitee to so notify the
Indemnifying Person shall relieve the Indemnifying Person from the obligation to
indemnify such Purchaser Indemnitee only to the extent that the Indemnifying
Person suffers actual and material prejudice as a result of such failure but in
no event shall such failure to notify the Indemnifying Person (i) constitute
prejudice suffered by the Indemnifying Person if it has otherwise received
notice of the actions giving rise to such obligation to indemnify or (ii)
relieve it from any liability or obligation that it may otherwise have to such
Purchaser Indemnitee under this Agreement. In case any such action or claim
shall be brought or asserted against any Purchaser Indemnitee and it shall
notify the Indemnifying Person of the commencement or assertion thereof, the
Indemnifying Person shall be entitled to participate therein but the defense of
such action or claim shall be conducted by counsel to the Purchaser Indemnitee,
provided, however, that the Indemnifying Person shall not, in connection with
any one such action or proceeding or separate but substantially similar actions
or proceedings arising out of the same general allegations, be liable for the
fees and expenses of more than one separate firm of attorneys at any time for
all Purchaser Indemnitees, except to the extent that local counsel, in addition
to regular counsel, is required in order to effectively defend against such
action or proceeding and provided further that a Purchaser Indemnitee shall not
enter into any settlement of any such claim without the prior consent of the
Company, such consent not to be unreasonably withheld or delayed.
SECTION 8.03 Survival of Representations, Warranties and Covenants. Except
as provided in clauses (a), (b) or (c) of this Section 8.03, the
representations, warranties, covenants, and agreements included in this
Agreement shall survive for a period of three (3) years: (a) the obligations set
forth in Sections 5.08 (Access and Information), 5.09(b) (Publicity) and 5.12
(Directors' and Officers' Indemnification and Insurance), shall survive for the
periods specified therein for the performance of the covenants set forth
therein; (b) the representations set forth in Sections 3.01(n) (Taxes), 3.01(o)
(Employee Benefit Plans and Related Matters; ERISA) and 3.01(p) (Environmental
Laws) shall survive until the date that is six (6) months after the expiration
of the longest applicable federal or state statute of limitations; and (c) the
obligations set forth in Sections 5.09(a) (Confidentiality), and 5.10
(Restrictions), and Articles VIII (Indemnification) and IX (Miscellaneous) shall
survive indefinitely.
ARTICLE IX
Miscellaneous
SECTION 9.01 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable.
SECTION 9.02 Specific Enforcement. Purchasers, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity.
SECTION 9.03 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) and the other Transaction Documents contain the entire
understanding of the parties with respect to the transactions contemplated
hereby.
SECTION 9.04 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
SECTION 9.05 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC:
Tutor-Saliba Corp.
Attn: Ronald N. Tutor
15901 Olden Street
Sylmar, CA 91342-1093
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
National Union Fire Insurance Company of
Pittsburgh, PA.
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10036
Attn: Chris Lee
Facsimile: (212) 458-2256
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John Hornbostel
Facsimile: (212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia; Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
or to such other address or telex number as any party may, from time to time,
designate in a written notice given in a like manner.
SECTION 9.06 Amendments. This Agreement may be amended as to Purchasers and
their successors and assigns (determined as provided in Section 9.07), and the
Company may take any action herein prohibited, or omit to perform any act
required to be performed by it, if the Company shall obtain the written consent
of Purchasers. This Agreement may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party or
parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
SECTION 9.07 Successors and Assigns. All covenants and agreements contained
herein shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns. Prior to the Closing Date, National Union may
assign all of its rights and obligations to American International Group, Inc.
("AIG") or any other person the equity of which is, directly or indirectly, 100%
owned by AIG, without the consent of the other parties hereto, and may assign up
to 50% of the interest to be acquired by it pursuant to this Agreement to a
third party, subject to the written consent of the Company and TSC, which shall
not be unreasonably withheld (and, in either such event, such assignee shall
become a "Purchaser" hereunder). Except as provided in the preceding sentence,
no party may assign any of its rights under this Agreement without the written
consent of the other parties.
SECTION 9.08 Expenses and Remedies.
(a) All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be borne by the party
incurring such expense, except as set forth in the next four paragraphs.
(b) Notwithstanding Section 9.08(a), (i) if a Purchaser terminates
this Agreement pursuant to Section 7.01(c)(i) (due to material breach of
any covenant or agreement or an intentional and willful breach of any
representation or warranty by the Company) or (c)(ii), or (ii) if the
Company terminates this Agreement pursuant to Section 7.01(d)(ii) (by
virtue of a failure of the condition set forth in Section 6.02(d)) or
7.01(d)(iii), the Company shall pay TSC a termination fee of $750,000 (the
"Termination Fee") within ten (10) days of such termination, which
Termination Fee shall be deemed to reimburse Purchasers for their legal,
accounting and other out-of-pocket expenses as well as the damages they
will have suffered by virtue of such termination.
(c) Notwithstanding Section 9.08(a), (i) if a Purchaser or the Company
terminates this Agreement pursuant to Section 7.01(b)(i) or (ii), (ii) if a
Purchaser terminates this Agreement pursuant to Section 7.01(c)(i) (for
reasons other than as provided in Section 9.08(b)) or (c)(iii) (for
failures of the conditions set forth in 6.03(a), 6.03(b), 6.03(d), 6.03(f),
6.03(g) (provided that no amount shall be payable if the failure is not due
to any fault of the Company), 6.03(h), 6.03(i), 6.03(j), 6.03(k), 6.03(l),
6.03(m), or 6.03(n)), or (iii) the Company terminates this Agreement
pursuant to Section 7.01(d)(ii) (other than for failure of a condition set
forth in section 6.02(d)), the Company shall reimburse Purchasers for the
reasonable out-of-pocket expenses (including reasonable fees and expenses
of legal counsel) incurred by Purchasers in connection with this Agreement
or the matters contemplated hereby (the "Purchasers' Expenses"), which
reimbursable amount shall not to exceed $600,000 in the aggregate.
(d) Notwithstanding Section 9.08(a), if (i) either Purchaser or the
Company terminates this Agreement pursuant to any provision of Section 7.01
(other than a termination for which a Termination Fee was paid pursuant to
Section 9.08(b) and other than a termination by the Company pursuant to
Section 7.01(d)(i)), and (ii) during the period ending twelve (12) months
after termination of this Agreement, the Company enters into an agreement
relating to a Transaction Proposal, then immediately prior to consummation
of such transaction, the Company shall pay the Termination Fee; provided,
however, that the Company shall receive a credit for any Purchasers'
Expenses paid pursuant to Section 9.08(c) and it being understood that if
the Termination Fee is paid pursuant to Section 9.08(b) it shall not be
required to be paid subsequently under this Section 9.08(d).
(e) Notwithstanding Section 9.08(a), upon the occurrence of the
Closing, the Company shall reimburse the Purchasers for the Purchasers'
Expenses, which reimbursable amount shall not be subject to the limit set
forth in Section 9.08(c).
SECTION 9.09 Transfer of Shares. Each Purchaser understands and agrees that
the Shares have not been registered under the Securities Act or the securities
laws of any state and that they may be sold or otherwise disposed of only in one
or more transactions registered under the Securities Act and, where applicable,
such laws or as to which an exemption from the registration requirements of the
Securities Act and, where applicable, such laws is available. Each Purchaser
acknowledges that except as provided in the Registration Rights Agreement, it
has no right to require the Company to register the Shares. Each Purchaser
understands and agrees that each certificate representing shares of Common Stock
shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH
LAWS."
and Purchaser agrees to transfer shares of Common Stock only in accordance with
the provisions of such legends. After termination of the requirement that all or
part of such legend be placed upon a certificate, the Company shall, upon
receipt by the Company of evidence reasonably satisfactory to it that such
requirement has terminated and upon the written request of the holders of the
Shares issue certificates for the Shares that do not bear such legend.
SECTION 9.10 Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of New York, except to the extent that Massachusetts law
mandatorily governs. Each of the Company and Purchasers irrevocably submits to
the personal exclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each of the Company and Purchasers further agree that service of any process,
summons, notice or document hand delivered or sent by registered mail to such
party's respective address set forth in Section 9.10 will be effective service
of process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction as set forth in the
immediately preceding sentence. Each of the Company and Purchasers irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in such court that any such action, suit or
proceeding brought in such court has been brought in an inconvenient forum.
SECTION 9.11 Third Party Beneficiaries. As provided in Section 5.12, the
directors of the Company are the intended beneficiaries of that section of this
Agreement. Except as provided in Section 5.12, nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
SECTION 9.12 Mutual Drafting. This Agreement is the mutual product of the
parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
SECTION 9.13 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by the other party as to such
tax consequences.
[remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, each Purchaser and the Company have caused
this Agreement to be duly executed as of the day and year first above written.
PERINI CORPORATION TUTOR-SALIBA CORPORATION
By: _____________________ By: _____________________
Name: Name:
Title: Title:
O&G INDUSTRIES, INC. NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: _____________________ By: _____________________
Name: Name:
Title: Title:
<PAGE>
Exhibit 2.01
Purchase and Sale of Shares
Tutor-Saliba Corporation 2,352,942
O&G Industries, Inc. 2,352,941
National Union Fire Insurance Company of Pittsburgh, PA. 4,705,882
- --------------------------------------------------------------------------------
TOTAL 9,411,765
<PAGE>
Exhibit 6.02(c)(i)
Form of Registration Rights Agreement
[to be attached]
<PAGE>
Exhibit 6.02(c)(ii)
Form of Shareholders Agreement
[to be attached]
<PAGE>
Exhibit 6.03
Required Amendments and Revisions
Related to Series B Preferred Stock
1. Deletion or waiver of Section 7.2 of the Series B Purchase Agreement in its
entirety.
2. Deletion or waiver of Section 7.3 of the Series B Purchase Agreement in its
entirety.
3. Replacement of Section 7(b) of the Series B Certificate of Vote with:
"On and after the Closing (as defined in the Securities Purchase Agreement,
dated January __, 2000, no action on the part of Corporation shall constitute
a `Special Default'."
4. Deletion of Section 13 of the Series B Certificate of Vote in its entirety.
5. Deletion or waiver of Section 7.20 of the Series B Purchase Agreement.
<PAGE>
Exhibit 6.03(d)
Terms of Amendment to By-Laws
[to be attached]
<PAGE>
Exhibit 6.03(g)
Terms of Amendment to Credit Facilities
[to be attached]
<PAGE>
Exhibit 6.03(i)
Form of KPMG Opinion Regarding NOLs
[to be attached]
<PAGE>
EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ________ __, 2000 by
and among Perini Corporation, a Massachusetts corporation (together with
its successors, the "Company"), Tutor-Saliba Corporation, a California
corporation ("TSC"), Ronald N. Tutor ("RNT"), National Union Fire Insurance
Company of Pittsburgh, PA, a Pennsylvania corporation ("National Union"),
and O&G Industries, Inc., a Connecticut corporation (("O&G"), BLUM Capital
Partners, L.P., a California limited partnership ("BLUM"), PB Capital
Partners, L.P., a Delaware limited partnership ("PB Capital"), The Common
Fund for Non-Profit Organizations, a New York non-profit corporation ("The
Common Fund"), and The Union Labor Life Insurance Company, a Maryland
corporation acting on behalf of its Separate Account P ("ULLICO" and
collectively with TSC, RNT, AIG, O&G, BLUM and PB Capital the
"Shareholders").
WHEREAS, pursuant to the terms and conditions of the
Securities Purchase Agreement dated as of February __, 2000 (the
"Securities Purchase Agreement"), among the Company and the Shareholders,
TSC, National Union and O&G shall acquire shares of common stock, par value
$1.00 per share, of the Company on the Closing (as defined in the
Securities Purchase Agreement), in the amounts set forth opposite each name
on Exhibit 2.01 thereto;
WHEREAS, pursuant to the terms of certain exchange agreements
dated as of _________ __, 2000, between the Company and certain holders of
the Company's Series B Preferred Stock, such holders have agreed to
exchange their Series B Preferred Stock for Common Stock of the Company;
and
WHEREAS, the Company has agreed with the Shareholders to
provide certain rights as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein,
the following terms used in this Agreement shall have the meanings specified
below.
(a) "BLUM" has the meaning set forth in the introductory paragraph
hereof.
(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
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald 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]
<PAGE>
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by its authorized officer as of the day and year first above
written.
PERINI CORPORATION
By:________________________
Name:______________________
Title:_____________________
TUTOR-SALIBA CORPORATION
By:________________________
Name: _____________________
Title:_____________________
RONALD N. TUTOR
---------------------------
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:________________________
Name:______________________
Title:_____________________
O&G INDUSTRIES, INC.
By:________________________
Name:______________________
Title:_____________________
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:_________________________
<PAGE>
Exhibit 3
SHAREHOLDERS' AGREEMENT
dated as of _______ ___, 2000
among
TUTOR-SALIBA CORPORATION,
RONALD N. TUTOR,
O&G INDUSTRIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
BLUM CAPITAL PARTNERS, L.P.
PB CAPITAL PARTNERS, L.P.,
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS,
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P,
and
PERINI CORPORATION
<PAGE>
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 3.03 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......13
ARTICLE IV Call Rights........................................................13
SECTION 4.01 Call Option................................13
SECTION 4.02 Call Period................................13
SECTION 4.03 Call Notice................................13
SECTION 4.04 Call Price.................................13
SECTION 4.05 Call Closing...............................13
SECTION 4.06 Assignment of Call Option..................14
SECTION 4.07 Call Postponement..........................14
SECTION 4.08 Exercise of Call Option Not a Transfer.....14
ARTICLE V Rights of First Refusal.............................................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 Law;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
<PAGE>
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 certificate separate and distinct from any Shares held by
National Union or its Permitted Transferee, if any, that are not
identically legended, and (ii) Shares represented by certificates issued to
replace the certificate(s) referred to in the preceding clause; provided,
however, that the Put/Call Shares shall not include Shares Transferred in
accordance with Article V (except as provided in Section 5.04) or Article
VI (except as provided in Section 6.02) of this Agreement. Shares shall
cease to be Put/Call Shares upon the lapse or termination of the Put Option
or Call Option.
(ee) "Registration Rights Agreement" means that certain Registration
Rights Agreement dated even date herewith among the Company, TSC, National
Union and O&G, as amended, modified or supplemented from time to time.
(ff) "ROFR Shares" means: (i) as to National Union, its Permitted
Transferees and any Co-Investors, any Put/Call Shares owned by such party
(including Shares issued on account of any subsequent Common Stock
dividends, stock splits, reverse stock splits or other similar transactions
relating thereto), and (ii) as to TSC and its Permitted Transferees, any
Shares owned by such party immediately following the Closing (including
Shares issued on account of any subsequent Common Stock dividends, stock
splits, reverse stock splits or other similar transactions relating
thereto).
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Securities Act" means the Securities Act of 1933, as amended.
(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 Offering 2.03
Purchasing Shareholder 5.02
Put Closing 3.06
Put Event Period 3.02
Put Notice 3.04
Put Option 3.01
Put Period 3.02
Put Price 3.05
Put Postponement 3.09
Put Purchaser 3.01
Put Seller 3.01
Selling Shareholder 5.01
Subscription Notice 7.07
ARTICLE II
Shares Subject to this Agreement; Transfers
SECTION 2.01 Shares Subject to this Agreement. Except as otherwise provided
in any Article of this Agreement, the Shares owned by any Shareholder, Permitted
Transferee or Co-Investor from time to time shall be subject to this Agreement.
Shares transferred by any Shareholder, Permitted Transferee or Co-Investor shall
not be entitled to the benefits of, or subject to the obligations in, this
Agreement unless otherwise expressly provided for in this Agreement.
SECTION 2.02 Restrictions on Transfer. No Shareholder, Permitted Transferee
or Co-Investor may, directly or indirectly, Transfer to third parties or any
other shareholder of the Company, any Shares (including, in the case of National
Union or its Permitted Transferee, the Put/Call Shares), in whole or in part,
unless both (i) such Shares are Transferred pursuant to Section 2.04 of this
Agreement, and (ii) such Shares are Transferred, directly or indirectly, in
accordance with Articles III, IV, V and VI of this Agreement to the extent such
provisions are applicable. For purposes hereof, an indirect Transfer shall
include the Transfer of Control of any Shareholder except where the indirect
transferee is a Permitted Transferee.
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings.
(a) A "Permitted Transferee" shall mean, as to any Shareholder, (i) a
Subsidiary of such Shareholder, (ii) any Person that owns, directly or
indirectly, 100% of the outstanding capital stock of such Shareholder or
(iii) a Subsidiary of a person described in clause (ii). A Shareholder
shall be permitted to Transfer up to 100% of its Shares to a Permitted
Transferee without first complying with any provisions of this Agreement
other than Sections 2.04 and 2.05. A Permitted Transferee shall be entitled
to the benefits of, and be subject to the obligations in, this Agreement. A
Permitted Transferee shall be required to execute and deliver a counterpart
of this Agreement and such other agreements as the Shareholders and the
Company shall reasonably request agreeing to be bound hereby and such
Permitted Transferee shall be deemed to be a Shareholder hereunder and a
party to this Agreement.
(b) A "Co-Investor" shall mean any Person (other than a Permitted
Transferee or a purchaser in a bona fide registered public offering) to
which any Shareholder, Permitted Transferee or Co-Investor Transfers
Shares. Notwithstanding anything herein to the contrary, (x) a Co-Investor
shall have no rights or obligations under Articles III, IV, V or VI of this
Agreement (except as otherwise provided in Sections 5.04 or 6.02), and (y)
a Co-Investor shall have no rights to nominate a director under Article VII
but shall be subject to the voting requirements of Section 7.02 thereof.
(c) A Shareholder shall be permitted to Transfer up to 100% of its
Shares (other than Put/Call Shares) to a bona fide purchaser through a
registered public offering pursuant to registration rights granted under
the Registration Rights Agreement (a "Public Offering") without first
complying with any provisions of this Agreement other than Sections 2.04
and 2.05 and Articles V and VI. Persons who acquire their Shares in a
Public Offering shall not have any rights or obligations under this
Agreement and shall not become parties hereto.
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.
Notwithstanding any other provision of the Agreement to the contrary, to
preserve the Company's ability to fully utilize its net operating loss
carryforwards ("NOLs"), which each Shareholder deems to be a material favorable
attribute of its investment in the Equity Securities of the Company, each of the
Shareholders, their Permitted Transferees and the Co-Investors agrees that it
will not purchase or sell any Equity Securities of the Company during the
three-year period commencing on the Closing Date unless it meets each of the
following four conditions:
(a) Such Shareholder, Permitted Transferee or Co-Investor shall notify
each of the Company and the other parties hereto in writing at least
fifteen (15) Business Days in advance of any proposed purchase or sale;
(b) Other than with respect to Put/Call Shares being Transferred in
accordance with Article III or IV of this Agreement, all the other
Shareholders shall be given the opportunity to participate in any proposed
purchase or sale in proportion to the amount of Equity Securities of the
Company held by such Shareholder as of the date of the notice referred to
in clause (a);
(c) Each Shareholder, Permitted Transferee or Co-Investor shall
consummate any proposed purchase or sale only to the extent that tax
advisors for the Company (or in the alternative, tax advisors retained by
the selling party reasonably acceptable to the Company and the
Shareholders) have provided the Company with written advice that the
proposed purchase or sale will not impair the ability of the Company to
fully utilize its remaining NOLs; the Company shall use commercially
reasonable efforts to obtain tax advice referred to in this clause (c) from
its tax advisors and shall cooperate with the reasonable requests for
information from the Shareholders and their respective tax advisors
retained pursuant to this clause (c); and
(d) Each Permitted Transferee and Co-Investor shall execute and
deliver a counterpart of this Agreement or such other agreements as the
Shareholders and the Company shall reasonably request as to the existence
and enforceability of Sections 2.04 and 2.05 and such Permitted Transferee
or Co-Investor shall be deemed to be a Shareholder hereunder and a party to
this Agreement for such purposes.
In addition, each of the Shareholders and their respective Permitted Transferees
agrees that during the three year period commencing on the Closing Date, it will
- - and it will use commercially reasonable efforts to cause any director
designated by it to - vote against any issuance or redemption of Equity
Securities by the Company if such issuance or redemption would impair the
ability of the Company to fully utilize its remaining NOLs unless such issuance
or redemption is authorized by Shareholders and their Permitted Transferees
holding at least two-thirds of the Shares then held by such persons.
SECTION 2.05 Attempted Transfers in Violation of this Agreement. Any
attempt by a Shareholder, Permitted Transferee or Co-Investor to transfer Equity
Securities of the Company or any interest therein, directly or indirectly, to
any Person in violation of any provision of this Agreement shall be void ab
initio and the Company shall have no obligation to, and shall refuse to,
register such Equity Securities of the Company in the name of the transferee and
the transferee shall have no rights with respect to such Equity Securities.
SECTION 2.06 Legend.
(a) In addition to any other legend that may be required pursuant to
the Securities Purchase Agreement or otherwise, each certificate for the
Shares that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFER (INCLUDING RIGHTS
OF FIRST REFUSAL AND TAG-ALONG RIGHTS), ALL AS SET
FORTH IN THE SHAREHOLDERS' AGREEMENT DATED AS OF
______ ___, 2000. THE HOLDER OF THIS CERTIFICATE MAY
REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT FROM
THE COMPANY, A COPY OF WHICH THE COMPANY WILL MAIL TO
THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN
FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED
TO THE SECRETARY OF THE COMPANY."
(b) In addition to any other legend that may be required, each
certificate for the Put Shares that is issued to any Shareholder shall bear
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
ALSO SUBJECT TO PUT AND CALL OPTIONS AS SET FORTH IN
THE SHAREHOLDERS' AGREEMENT DATED AS OF ________ ___,
2000 AND ARE NOT TRANSFERABLE EXCEPT AS PERMITTED
UNDER THAT AGREEMENT. THE HOLDER OF THIS CERTIFICATE
MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST
ADDRESSED TO THE SECRETARY OF THE COMPANY."
(c) In addition to any other legend that may be required, each
certificate for Equity Securities that is issued to any Shareholder shall
bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER IN
ORDER TO PRESERVE THE COMPANY'S ABILITY TO UTILIZE
ITS NET OPERATING LOSS CARRYFORWARDS AS SET FORTH IN
THE SHAREHOLDERS' AGREEMENT DATED AS OF ________ ___,
2000 AND ARE NOT TRANSFERABLE EXCEPT AS PERMITTED
UNDER THAT AGREEMENT. THE HOLDER OF THIS CERTIFICATE
MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST
ADDRESSED TO THE SECRETARY OF THE COMPANY."
(d) The same legends shall be placed on all certificates for Shares
and other Equity Securities, as the case may be, that are or become subject
to this Agreement. The failure to place legends on a certificate shall not
affect the application of this Agreement to the Shareholders.
(e) If any Shares shall cease to be subject to the restrictions on
Transfer under this Article II, the holder may request that the Company
remove the legend set forth in Section 2.06(a) or, if the Shares shall
cease to be Put/Call Shares, the holder may request the Company to remove
the legend set forth in Section 2.06(b), or, if Equity Securities shall
cease to be subject to the restrictions on Transfer set forth in Section
2.04, the holder may request the Company to remove the legend set forth in
Section 2.06(c)and issue a new certificate evidencing such Equity
Securities without the applicable legend required to be endorsed thereon,
if such legend is no longer applicable.
ARTICLE III
Put Rights
SECTION 3.01 Put Option. Subject to Section 2.04 (other than subsection
2.04(b)), National Union and its Permitted Transferees, if any (collectively the
"Put Seller") shall have the right, at their collective discretion, to cause TSC
or its Assignee (as hereafter defined) (a "Put Purchaser") to purchase (the "Put
Option") all (but not less than all) of the Put/Call Shares owned by the Put
Seller as of the date notice is given pursuant to Section 3.03; provided,
however, that during a Put Event Period, National Union may elect to include
within the term "Put/Call Shares" for purposes of this Article III any other
Shares purchased by National Union at Closing then owned by it (including Shares
issued on account of any subsequent Common Stock dividends, stock splits,
reverse stock splits or other similar transactions relating thereto).
SECTION 3.02 Put Period. The "Put Period" shall be the period commencing on
the third anniversary of the Closing and ending on the sixth anniversary of the
Closing. In addition, a "Put Event Period" shall also commence on the occurrence
of a Put Event and shall continue for ninety (90) days thereafter.
SECTION 3.03 Put Notice. The Put Seller shall exercise the Put Option by
delivery of written notice to the Put Purchaser during the Put Period or Put
Event Period, as the case may be. Upon receipt of a Put Notice in accordance
with the terms hereof, the Put Seller shall be obligated to sell all of the
Put/Call Shares then outstanding free and clear of all liens and encumbrances
created by it or its Affiliates (other than pursuant to this Agreement) and the
Put Purchaser shall be obligated to purchase all of such Put/Call Shares at the
applicable Put Price in accordance with, and subject to, the terms hereof;
provided, however, that the Put Option may not be exercised if the Put Seller
has breached the requirements of Article 2 hereof for so long as such breach is
continuing.
SECTION 3.04 Put Price. The "Put Price" shall be the product of the (a) the
number of Put/Call Shares outstanding subject to the Put Option, multiplied by
(b) the Target Investment Value per Share. At the Put Closing, the Put Seller
will distribute to the Put Purchaser the Distributable Property-in-Kind.
SECTION 3.05 Put Closing. The closing of the purchase and sale of Put/Call
Shares pursuant to the Put Option, shall take place at the principal office of
the Put Purchaser on a Business Day to be mutually agreed upon by the Put
Purchaser and Put Seller, which date shall be as soon as practicable after
receipt of the Put Notice (the "Put Closing"); provided, however, that if the
purchase of Put/Call Shares is subject to prior regulatory approval or requires
the determination of Fair Market Value, the parties will use their reasonable
best efforts to obtain the necessary regulatory approvals or determination of
Fair Market Value and Put Closing shall be postponed until the expiration of
five (5) Business Days after the later of (i) all such regulatory approvals
shall have been received or (ii) the determination of Fair Market Value. At the
Put Closing, the Put Seller shall deliver to the Put Purchaser (A) the
certificates representing the Put/Call Shares duly endorsed or accompanied by
stock powers executed in blank, in form and substance satisfactory to the Put
Purchaser, together with all other documents required to be executed in
connection with the sale of the Put/Call Shares and evidence satisfactory to the
Put Purchaser that the Put/Call Shares are being transferred free and clear of
all liens and encumbrances created by the Put Seller or its Affiliates, and (B)
all Distributable Property-in-Kind (it being understood that in no event shall a
Put Seller be obligated to make any representations and warranties, or to
provide any indemnities, with respect to any matters other than title to the Put
Shares and Distributable Property-in-Kind held by such Person, such title being
free and clear of all liens and encumbrances created by it or its Affiliates,
and such Person's authority, authorization and right to enter into and
consummate the sale without contravention of any law or agreement, and without
the need for any third party (not including any governmental or regulatory
consent or approval which shall have been received)). At the Put Closing, the
Put Purchaser shall pay the Put Price by delivery of cash by wire transfer to
the account of the Put Seller. At the Put Closing, the Put Seller will transfer
the Distributable Property-in-Kind to the Put Purchaser.
SECTION 3.06 Assignment of Put Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to an Affiliate, including RNT, the
Company or a Permitted Transferee (the "Assignee"), in which event all
references to TSC shall be deemed to refer to any Assignee and such Assignee
shall be deemed a party to this Agreement. Notwithstanding an assignment of the
Put Option by TSC or its Permitted Transferee, TSC shall remain liable under
this Article III. The rights and obligations of the Put Seller under this
Article III are not assignable without the consent of TSC.
SECTION 3.07 RNT Obligation Under Put Option. RNT shall be jointly and
severally liable for all obligations of TSC under this Article III.
SECTION 3.08 Put Postponement. Notwithstanding anything herein to the
contrary, the Put Seller may not exercise the Put Option if prohibited from
doing so under Article II or applicable law, provided the Put Purchaser and Put
Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 3.09 Exercise of Put Option Not a Transfer. Neither the exercise by
the Put Seller of the Put Option, nor the consummation of the transaction
contemplated thereby, shall constitute a Transfer that is subject to the right
of first refusal set forth in Article V or that is subject to the tag-along
rights set forth in Article VI.
ARTICLE IV
Call Rights
SECTION 4.01 Call Option. Subject to Section 2.04 (other than subsection
2.04(b)), TSC or its Assignee (in either case, the "Call Purchaser") has the
right, at its sole option, to cause National Union and its Permitted
Transferees, if any (collectively the "Call Seller") to sell (the "Call Option")
to TSC or its Assignee all (but not less than all) of the Put/Call Shares held
by the Call Seller as of the date notice is given pursuant to Section 4.03.
SECTION 4.02 Call Period. The "Call Period" shall be the period commencing
on the third anniversary of the Closing and ending on the sixth anniversary of
the Closing. In addition, a Call Period shall also commence on the occurrence of
a Call Event and shall continue for ninety (90) days thereafter.
SECTION 4.03 Call Notice. A Call Purchaser shall exercise its Call Option
by delivery of written notice to the Call Seller during the Call Period. Upon
receipt of a Call Notice in accordance with the terms hereof, the Call Seller
shall be obligated to sell all of its or their Put/Call Shares free and clear of
all liens and encumbrances created by it or its Affiliates (other than pursuant
to this Agreement) and the Call Purchaser shall be obligated to purchase all of
its or their Put/Call Shares at the Call Price in accordance with, and subject
to, the terms hereof.
SECTION 4.04 Call Price. The "Call Price" for the Put/Call Shares shall be
the product of the (a) the number of Put/Call Shares outstanding and subject to
the Call Option, multiplied by (b) the Target Investment Value per Share. At the
Call Closing, the Call Seller with distribute to the Call Purchaser the
Distributable Property-in-Kind.
SECTION 4.05 Call Closing. The closing of the purchase and sale of Put/Call
Shares pursuant to the Call Option, shall take place at the principal office of
the Call Purchaser on a Business Day to be mutually agreed upon by the Call
Purchaser and the Call Seller, which date shall be as soon as practicable days
after receipt of the Call Notice (the "Call Closing"); provided, however, that
if the purchase of Put/Call Shares is subject to prior regulatory approval or
requires the determination of Fair Market Value, the parties will use their
reasonable best efforts to obtain the necessary regulatory approvals or
determination of Fair Market Value and the Call Closing shall be postponed until
the expiration of five (5) Business Days after the later of (i) all such
regulatory approvals shall have been received or (ii) the determination of Fair
Market Value. At the Call Closing, the Call Seller shall deliver to the Call
Purchaser (A) the certificates representing the Put/Call Shares duly endorsed or
accompanied by stock powers executed in blank, in form and substance
satisfactory to the Call Purchaser, together with all other documents required
to be executed in connection with the sale of the Put/Call Shares and evidence
satisfactory to the Call Purchaser that the Put/Call Shares are being
transferred free and clear of all liens and encumbrances created by the Call
Seller or its Affiliates, and (B) all Distributable Property-on-Kind (it being
understood that in no event shall a Call Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put/Call Shares and Distributable
Property-in-Kind held by such Person, such title being free and clear of all
liens and encumbrances created by it or its Affiliates, and such Person's
authority, authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
(not including any governmental or regulatory consent or approval which shall
have been received)). At the Call Closing, the Call Purchaser shall pay the Call
Price by delivery of cash by wire transfer to the account of the Call Seller. At
the Call Closing, the Call Seller will transfer the Distributable
Property-in-Kind to the Call Purchaser.
SECTION 4.06 Assignment of Call Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to any Permitted Transferee and,
with the consent of National Union to such transfer of the Call Option in
writing (which such consent shall be in the sole discretion of National Union
and may be granted or withheld for any reason or no reason), to any other
assignee.
SECTION 4.07 Call Postponement. Notwithstanding anything herein to the
contrary, the Call Purchaser may not exercise the Call Option if prohibited from
doing so under applicable law, provided the Call Purchaser and Call Seller, as
applicable, shall take all reasonable steps to comply with such applicable law.
SECTION 4.08 Exercise of Call Option Not a Transfer. Neither the exercise
by the Call Purchaser of the Call Option, nor the consummation of the
transaction contemplated thereby shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
ARTICLE V
Rights of First Refusal
SECTION 5.01 Right of First Refusal on Transfers.
(a) Only National Union, TSC and their respective Permitted
Transferees shall have any rights and obligations under this Article V
(each a "Selling Holder"). Subject to Sections 2.04, 5.04 and 5.05, if any
Selling Holder desires to Transfer all or any part of the ROFR Shares owned
by it pursuant to a bona fide offer from a third party (the "Proposed
Transferee"), the Selling Shareholder shall submit a written offer (the
"Offer") to sell such shares (the "Offered Shares") on terms and
conditions, including price, not less favorable than those on which the
Selling Shareholder proposes to sell such Offered Shares to the Proposed
Transferee to TSC and its Permitted Transferees (if the Selling Holder is
National Union or its Permitted Transferees) or to National Union and its
Permitted Transferees (if the Selling Holder is TSC, RNT or their Permitted
Transferees); in either case, the parties to whom the Selling Holders offer
their shares are referred to in this Article V as the "Offerees".
(b) The rights of TSC or its Permitted Transferees, on the one hand,
and National Union and its Permitted Transferees, on the other hand, under
this Article V shall be in addition to and not in substitution of their
respective rights under the Put Option or Call Option, as the case may be,
in their discretion.
(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. 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. Each Person who nominates a director of the
Company pursuant to Section 7.01 shall have the right to cause that person to
resign as a director of the Company. Any vacancy on the Board of Directors of
the Company created by the resignation, removal, incapacity or death of any
person nominated under this Article VII shall be filled by another person
nominated by the party who nominated the director creating such vacancy or by
such party's successors and assigns. The Shareholders agree to vote their
respective shares of Common Stock in accordance with such new designation, and
any such vacancy shall not be filed in the absence of a new nomination in
accordance with the foregoing sentence.
SECTION 7.04 Continuation as Director. Upon the occurrence of any event
that results in a Shareholder no longer being entitled to nominate a director
under Section 7.01, the Person so nominated shall continue as a director of the
Company until his successor is nominated, elected and qualifies.
SECTION 7.05 Publicity. To the extent that any of the Company or any
Shareholder intends to issue any press release or make any similar public
announcement or communication regarding the execution or performance of this
Agreement or the other Transaction Documents, the transactions contemplated
hereby and thereby, and the ongoing business relationship between the parties,
which release, announcement or disclosure mentions any of such parties, the
party making the disclosure shall consult with each of the parties so named in
such disclosure; provided, however, that no party shall be restrained, after
consultation with the other parties, to the extent such consultation is
feasible, from making such disclosure as it shall be required to make by
applicable law or by applicable regulations of any regulatory body or securities
exchange.
SECTION 7.06 Observer Rights for Shareholder Designee. The Company shall,
for so long as PB Capital and its Affiliates own or control at least 2.5% of the
outstanding shares 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 parties hereto and their
Permitted Transferees, Co-Investors and assignees; and, in the case of a natural
person, upon his successors, assigns, heirs, legatees, distributees, estates,
executors, administrators, personal representatives and other legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement. Nothing in this Agreement, expressed or implied, shall
confer on any party or Permitted Transferee, Co-Investor and assignee; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives, any greater rights, remedies, obligations or
liabilities than as set forth in this Agreement.
SECTION 8.04 Assignability. Except as set forth in this Agreement, neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by any party hereto or their Permitted
Transferees or assignees.
SECTION 8.05 Amendment; Waiver; Termination. No provision of this Agreement
may be waived except by an instrument in writing signed by the party against
whom the waiver is to be effective. No provision of this Agreement may be
amended or modified except by an instrument in writing signed by all of the
parties who would have any rights or obligations under the relevant provision
the Agreement. This Agreement shall terminate on the earlier of (i) the date
that National Union or its Permitted Transferee shall no longer Beneficially Own
any Put/Call Shares, or (ii) the sixth anniversary of the Closing.
SECTION 8.06 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald S. Tutor
Facsimile: (818) 367-9574
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]
<PAGE>
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by himself or its authorized officer as of the day and year first
above written.
PERINI CORPORATION
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:________________________
Name:______________________
Title:_____________________
TUTOR-SALIBA CORPORATION
By:_______________________
Name: Ronald N. Tutor
Title: President and Chief Executive Officer
-------------------------
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:_______________________
Name:_____________________
Title:____________________
O&G INDUSTRIES, INC.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:_______________________
Name:_____________________
Title:____________________
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:_______________________
