Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Perini Corporation
-----------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS
-----------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
04-1717070
-----------------------------------------------
(I.R.S. Employer Identification No.)
73 MT. WAYTE AVENUE, FRAMINGHAM, MASSACHUSETTS 01701
(508) 628-2000
------------------------------------------------------------------------------
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
PERINI CORPORATION SPECIAL EQUITY INCENTIVE PLAN
--------------------------------
(Full title of the plans)
ROBERT BAND
PRESIDENT AND CHIEF OPERATING OFFICER
PERINI CORPORATION
73 MT. WAYTE AVENUE, FRAMINGHAM, MASSACHUSETTS 01701
(508) 628-2000
------------------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Richard A. Soden, Esquire
Goodwin, Procter & Hoar LLP
Exchange Place, Boston, Massachusetts 02109
(617) 570-1000
<PAGE>
<TABLE>
<CAPTION>
Calculation of Registration Fee
--------------------------------------------------------------------------------------------------------------------
Proposed
Title of each class of Proposed maximum maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered (1) share (2) price (2) registration fee
-------------------------- -------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par 3,000,000 $4.20 $12,600,000 $3,326.40
value
-------------------------- -------------------- ---------------------- ---------------------- ----------------------
</TABLE>
(1) This Registration Statement covers options to purchase a maximum of
3,000,000 shares of the Company's Common Stock, par value $1.00 per share,
(the "Common Stock"), of which 2,200,000 shares have been granted at $4.50
per share, with the balance of 800,000 shares available to be granted in
accordance with the terms of the Plan.
(2) The price of 2,200,000 shares is equal to option grant price per share of
$4.50 and the price of the remaining 800,000 shares is equal to $3.375 per
share which is based upon the average of the high and low prices for the
shares of Common Stock as reported on the American Stock Exchange
Consolidated Reporting System on June 27, 2000. See Rule 457(h). Estimated
solely for the purpose of calculating the registration fee.
I-2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by Perini Corporation (the
"Registrant") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 are incorporated in this Registration Statement
by reference:
(i) The Registrant's Annual Report on Form 10-K for 1999 including the
consolidated financial statements and related schedules filed pursuant
to Section 13 of the 1934 Act;
(ii) Registrant's Quarterly Report on Form 10-Q for the period ended March
31, 2000, Report on Form 8-K filed on April 12, 2000 and the
Registrant's Proxy Statement, dated April 19, 2000, used in connection
with the Annual Meeting of Stockholders held on May 25, 2000;
(iii)the description of Common Stock of the Registrant contained under the
caption "Capital Stock to be Registered" in Registrant's Registration
Statement on Form 8-A dated May 10, 1973, as supplemented by the
Shareholder Rights Agreement and Certificate of Vote of Directors
adopting a Shareholder Rights Plan providing for the issuance of
Series A Junior Participating Cumulative Preferred Stock purchase
right as a dividend (such Shareholder Rights Agreement and Certificate
of Vote of Directors is filed as Exhibit 4.4 to the Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995), such
Shareholder Rights Agreement was amended and restated on January 17,
1997 and is filed as Exhibit 4.4 to Amendment No. 1 to Registration
Statement on Form 8-A/A filed on January 29, 1997 and was further
amended as of March 29, 2000 and is filed as Exhibit 4.3 to Form 8-K
filed on April 12, 2000.
All reports or other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part thereof from the date of filing of such
reports or documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Restated Articles of Organization, as amended, of the Registrant
provide for the elimination of liability of directors to the Registrant or its
stockholders for monetary damages for negligent acts or omissions to the extent
permitted by Section 13 of the Business Corporation Law of the Commonwealth of
Massachusetts.
Section 67 of the Business Corporation Law of the Commonwealth of
Massachusetts gives
II-1
<PAGE>
corporations the power to indemnify directors, officers, employees and other
agents and persons under certain circumstances.
The By-laws of the Registrant provide for indemnification of officers,
directors and certain other corporate representatives for all expenses incurred
by them in defense of any proceeding or lawsuit in which they are successful on
the merits. In such a situation, the right to receive indemnification is
mandatory and does not require an affirmative determination by the Board of
Directors.
The By-laws also authorize indemnification of officers, directors and
certain other corporate representatives for expenses and liabilities in cases
other than those in which they are successful on the merits, subject to
specified conditions. No indemnification shall be provided with respect to any
matter as to which an officer, director or corporate representative shall have
been adjudicated not to have acted in good faith and in the reasonable belief
that his action was in the best interest of the Registrant, or, with respect to
a criminal matter, that he had reasonable cause to believe that his conduct was
unlawful. No indemnification shall be provided for any director or officer or
corporate representative with respect to a proceeding by or in the right of the
Registrant in which he is adjudicated to be liable to the Registrant.
The By-laws provide that if a proceeding is compromised or settled in a
manner which imposes a liability or obligation upon a director or officer or
corporate representative, no indemnification shall be provided to him with
respect to (i) a proceeding by or in the right of the Registrant unless the
Board of Directors determines in its discretion that indemnification is
appropriate under the circumstances, and (ii) any other type of proceeding if it
is determined by the Board of Directors that said director or officer or
corporate representative is ineligible to be indemnified under the By-laws of
the Registrant.
The By-laws provide that any indemnification other than mandatory
indemnification shall be authorized in each case as determined by the Board of
Directors, which may act on the indemnification request notwithstanding that one
or more of its members are parties to the proceeding or otherwise have an
interest in such indemnification.
The By-laws also authorize the Registrant to purchase and maintain
insurance on behalf of officers and directors against liabilities incurred by
them in their capacities as such, whether or not the Registrant would have been
able to indemnify them for such liabilities.
In January 1987, the Registrant established the Perini Corporation
Indemnity Trust to assure that independent fiduciaries will administer the
indemnification obligations of the Registrant to its directors, officers,
employees and agents pursuant to the laws of Massachusetts, its Restated
Articles of Organization, as amended, By-laws, and indemnity contracts or
agreements. State Street Bank & Trust Company is the trustee. The Perini
Corporation Indemnity Trust currently has assets of nominal value but these
could be increased at any time.
The By-laws of the Registrant authorized the Registrant to enter into
specific agreements with its officers and directors to indemnify them to the
full extent permitted by law. In December 1986, the Board of Directors approved
and the Registrant entered into indemnification agreements with each of its
directors and certain of its officers. These initial indemnification agreements
were ratified by stockholders at the 1987 Annual Meeting. The indemnity
agreements provide for the specific procedures to be followed by the Company and
potential indemnitee when possible indemnification situations arise. They
provide for, among other things, procedures for advancing funds, definition of
covered expenses, and procedures for ultimately determining whether or not the
potential indemnitee should have been reimbursed and, if so, the extent of the
reimbursement.
The Registrant has a three-year insurance policy, effective July 1, 1998
with National Union Fire Insurance Company insuring directors and officers
against certain liabilities they may incur, including liabilities under the
Securities Act of 1933, as amended. This policy contains standard reimbursement
II-2
<PAGE>
provisions to an aggregate limit of $25 million and a corporate retention of
$200,000 for expenses reimbursable to the directors and/or officers of the
Registrant. The policy contains various reporting requirements and exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Exhibit
No. Description
------- -----------
4(a). Certificate of Vote of Directors Establishing a Series of a
Class of Stock determining the relative rights and preferences
of the $21.25 Convertible Exchangeable Preferred Stock
(incorporated by reference to Exhibit 4(a) to Registrant's
Amendment No. 1 to Form S-2 Registrant Statement (No 33-14434)).
4(b). Form of Deposit Agreement, including form of Depositary Receipt
(incorporated by reference to Exhibit 4(b) to Registrants
Amendment No. 1 to Form S-2 Registration Statement (No.
33-14434)).
4(c). Form of Indenture with respect to the 8-1/2% Convertible
Subordinated Debentures Due June 15, 2012, including form of
Debenture (incorporated by reference to Exhibit 4(c) to
Registrant's Amendment No. 1 to Form S-2 Registration Statement
(No. 33-14434)).
4(d). Shareholder Rights Agreement dated as of September 23, 1988, as
amended and restated as of May 17, 1990 and January 17, 1997,
and as further amended and restated as of March 29, 2000,
between Perini Corporation and State Street Bank and Trust
Company, as Rights Agent (incorporated by reference to Exhibit
4.3 to Form 8-K filed on April 12, 2000).
4(e). Certificate of Vote of Directors Establishing a Series of
Preferred Stock determining the relative rights and preferences
of the Series B Cumulative Convertible Preferred Stock, dated
January 16, 1997 (incorporated by reference to Exhibit 4.8 to
Form 8-K filed on February 14, 1997).
4(f)(i). Exchange Agreement by and between Perini Corporation and The
Union Labor Life Insurance Company, acting on behalf of its
Separate Account P, dated as of February 7, 2000 (incorporated
by reference to Exhibit 10.1 to Form 8-K filed on April 12,
2000).
4(f)(ii). Exchange Agreement by and between Perini Corporation and PB
Capital Partners, L.P., dated as of February 14, 2000
(incorporated by reference to Exhibit 10.2 to Form 8-K filed on
April 12, 2000).
4(f)(iii). Exchange Agreement by and between Perini Corporation and The
Common Fund for Non-Profit Organizations, dated as of February
14, 2000 (incorporated by reference to Exhibit 10.3 to Form 8-K
filed on April 12, 2000).
II-3
<PAGE>
4.16 Registration Rights Agreement by and among Perini Corporation,
Tutor-Saliba Corporation, Ronald N. Tutor, O&G Industries, Inc.
and 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, and The Union Labor
Life Insurance Company, acting on behalf of its Separate Account
P, dated as of March 29, 2000 (incorporated by reference to
Exhibit 4.1 to Form 8-K filed on April 12, 2000).
4.17 Shareholders' Agreement by and among Perini Corporation, Tutor-
Saliba Corporation, Ronald N. Tutor, O&G Industries, Inc. and
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, and The Union Labor Life
Insurance Company, acting on behalf of its Separate Account P,
dated as of March 29, 2000 (incorporated by reference to Exhibit
4.2 to Form 8-K filed on April 12, 2000).
5. Opinion of Robert E. Higgins, Esq., regarding legality of the
securities being registered- filed herewith.
23(a). Consent of Robert E. Higgins, Esq., (included in Exhibit 5).
23(b). Consent of Arthur Andersen LLP, Independent Public Accountants
- filed herewith.
24. Power of Attorney (contained on Signature Page).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's Annual Report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 6 above, or otherwise, the Registrant has been
advised that in
II-4
<PAGE>
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Perini Corporation, certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Framingham, Massachusetts, on the 29th day of June, 2000.
Perini Corporation
By: s/Robert Band
------------------------------------------
Robert Band
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert Band and Dennis M. Ryan, and each of them,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
Signature Title Date
--------------------------------------------- ----------------------------------------- ----------------------------
<S> <C> <C>
s/Ronald N. Tutor Chairman of the Company, Chief June 29, 2000
RONALD N. TUTOR Executive Officer and Director
(Principal Executive Officer)
s/Robert Band President, Chief Operating Officer and June 29, 2000
ROBERT BAND Director (Principal Financial Officer)
s/Michael E. Ciskey Vice President and Controller June 29, 2000
MICHAEL E. CISKEY (Principal Accounting Officer)
</TABLE>
II-6
<PAGE>
Signature Title Date
--------------------- -------- --------------
s/Ronald N. Tutor
RONALD N. TUTOR Director June 29, 2000
s/Peter Arkley
PETER ARKLEY Director June 29, 2000
s/Robert Band
ROBERT BAND Director June 29, 2000
s/Richard J. Boushka
RICHARD J. BOUSHKA Director June 29, 2000
s/Arthur I. Caplan
ARTHUR I. CAPLAN Director June 29, 2000
s/Frederick Doppelt
FREDERICK DOPPELT Director June 29, 2000
s/Nancy Hawthorne
NANCY HAWTHORNE Director June 29, 2000
s/Robert A. Kennedy
ROBERT A. KENNEDY Director June 29, 2000
s/Michael R. Klein
MICHAEL R. KLEIN Director June 29, 2000
s/Christopher H. Lee
CHRISTOPHER H. LEE Director June 29, 2000
s/Raymond R. Oneglia
RAYMOND R. ONEGLIA Director June 29, 2000
II-7
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
-------- -----------
4(a). Certificate of Vote of Directors Establishing a Series of a
Class of Stock determining the relative rights and preferences
of the $21.25 Convertible Exchangeable Preferred Stock
(incorporated by reference to Exhibit 4(a) to Registrant's
Amendment No. 1 to Form S-2 Registrant Statement (No 33-14434)).
4(b). Form of Deposit Agreement, including form of Depositary Receipt
(incorporated by reference to Exhibit 4(b) to Registrants
Amendment No. 1 to Form S-2 Registration Statement (No.
33-14434)).
4(c). Form of Indenture with respect to the 8-1/2% Convertible
Subordinated Debentures Due June 15, 2012, including form of
Debenture (incorporated by reference to Exhibit 4(c) to
Registrant's Amendment No. 1 to Form S-2 Registration Statement
(No. 33-14434)).
4(d). Shareholder Rights Agreement dated as of September 23, 1988, as
amended and restated as of May 17, 1990 and January 17, 1997,
and as further amended and restated as of March 29, 2000,
between Perini Corporation and State Street Bank and Trust
Company, as Rights Agent (incorporated by reference to Exhibit
4.3 to Form 8-K filed on April 12, 2000).
4(e). Certificate of Vote of Directors Establishing a Series of
Preferred Stock determining the relative rights and preferences
of the Series B Cumulative Convertible Preferred Stock, dated
January 16, 1997 (incorporated by reference to Exhibit 4.8 to
Form 8-K filed on February 14, 1997).
4(f)(i). Exchange Agreement by and between Perini Corporation and The
Union Labor Life Insurance Company, acting on behalf of its
Separate Account P, dated as of February 7, 2000 (incorporated
by reference to Exhibit 10.1 to Form 8-K filed on April 12,
2000).
4(f)(ii). Exchange Agreement by and between Perini Corporation and PB
Capital Partners, L.P., dated as of February 14, 2000
(incorporated by reference to Exhibit 10.2 to Form 8-K filed on
April 12, 2000).
4(f)(iii). Exchange Agreement by and between Perini Corporation and The
Common Fund for Non-Profit Organizations, dated as of February
14, 2000 (incorporated by reference to Exhibit 10.3 to Form 8-K
filed on April 12, 2000).
II-8
<PAGE>
4.16 Registration Rights Agreement by and among Perini Corporation,
Tutor-Saliba Corporation, Ronald N. Tutor, O&G Industries, Inc.
and 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, and The Union Labor
Life Insurance Company, acting on behalf of its Separate Account
P, dated as of March 29, 2000 (incorporated by reference to
Exhibit 4.1 to Form 8-K filed on April 12, 2000).
4.17 Shareholders' Agreement by and among Perini Corporation, Tutor-
Saliba Corporation, Ronald N. Tutor, O&G Industries, Inc. and
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, and The Union Labor Life
Insurance Company, acting on behalf of its Separate Account P,
dated as of March 29, 2000 (incorporated by reference to Exhibit
4.2 to Form 8-K filed on April 12, 2000).
5. Opinion of Robert E. Higgins, Esq., regarding legality of the
securities being registered- filed herewith.
23(a). Consent of Robert E. Higgins, Esq., (included in Exhibit 5).
23(b). Consent of Arthur Andersen LLP, Independent Public Accountants
- filed herewith.
24. Power of Attorney (contained on Signature Page).
II-9
<PAGE>
Exhibit 5
June 29, 2000
Perini Corporation
73 Mt. Wayte Avenue
Framingham, MA 01701
Re: Registration Statement on Form S-8
Dear Sirs:
I am acting as counsel to Perini Corporation, a Massachusetts corporation
(the "Company") and am an attorney duly admitted to practice in the Commonwealth
of Massachusetts.
I refer to the Registration Statement on Form S-8 of the Company with
respect to 3,000,000 shares (the "Subject Shares") of Common Stock, $1.00 par
value, of the Company to be issued to certain officers and key employees as
incentive compensation under the Company's Special Equity Incentive Plan. In
connection with the foregoing, I have examined such corporate records and
documents and certificates of officers of the Company and have made such other
inquiries as I deemed appropriate in order to express the opinion set forth
below.
Based on the foregoing, I am of the opinion that the Subject Shares have
been duly authorized and when issued, will be validly issued, fully paid and
non-assessable, with no personal liability attaching to the ownership thereof
subject to Section 45 of the Massachusetts Business Corporation Law.
I am the owner of 60 shares of the Company's Common Stock.
I consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, I do not thereby admit that I come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules or Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
s/Robert E. Higgins
Robert E. Higgins
Counsel
II-10
<PAGE>
Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 11, 2000, included in Perini Corporation's Annual Report on Form 10-K
for the year ended December 31, 1999 and to all references to our Firm included
in this registration statement.
s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 29, 2000
II-11
