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EXHIBIT 4.2
SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT
This SECOND AMENDMENT (the "Amendment") to the Stock Purchase Agreement is
made this 8th day of November, 1996, by and among XXXXXXX X. XXXX & ASSOCIATES,
L.P., a California limited partnership ("RCBA"), PB CAPITAL PARTNERS, L.P., a
Delaware limited partnership ("Purchaser"), and PERINI CORPORATION, a
Massachusetts corporation ("Seller"). Capitalized terms not defined herein
shall have the meaning given them in the Stock Purchase and Sale Agreement (the
"Agreement"), dated July 24, 1996, by and among RCBA, Purchaser, and Seller.
WHEREAS, RCBA, Purchaser, and Seller are parties to the Agreement; and
WHEREAS, by letter agreements dated August 21, 1996, September 16, 1996,
September 30, 1996, and October 9, 0000, XXXX, Xxxxxxxxx and Seller agreed to
change certain deadlines in the Agreement (collectively, the "First
Amendment"); and
WHEREAS, RCBA, Purchaser, and Seller now wish to amend certain terms
thereof; and
WHEREAS, except as amended hereby, the RCBA, Purchaser, and Seller desire
the Agreement, as amended, to continue in full force and effect.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and in the Agreement, each of the parties agrees as follows:
1. Section 1.6 is amended and restated in its entirety as follows:
1.6 "Bylaw Amendments" means the amendments to the Bylaws of
the Seller, to be approved by the Board of Directors and the
shareholders of Seller on or prior to the Closing Date, a true and
correct copy of which is attached as Exhibit 1.6 hereto.
2. Section 1.28 is amended and restated in its entirety as follows:
1.28 "Proxy Statement" means the proxy statement, complying
with the requirements of the Securities Exchange Act of 1934 (the
"Exchange Act"), sent to the shareholders of Seller in connection
with the Shareholder Meeting of Seller with respect to, among other
matters, the Shareholder Meeting Matters.
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3. Section 2.1 is amended by replacing "September 9, 1996" with "January
31, 1997".
4. Section 3.5 is amended and restated in its entirety as follows:
3.5 Rights Agreement. The Rights Agreement shall be in full
force and effect and not have been amended, modified or supplemented
on or after the date of this Agreement other than as provided in the
following sentence. The Board of Directors of the Seller shall have
(a) amended or waived provisions of the Rights Agreement such that
neither the execution nor the delivery of this Agreement and the
other Transaction Documents nor the fulfillment of the terms of this
Agreement by the Seller nor the issuance of shares of Conversion
Stock as herein contemplated will cause there to be a Stock
Acquisition Date or a Distribution Date (as those terms are defined
in the Rights Agreement), (b) amended the provisions of the Rights
Agreement to provide that Purchaser shall not be deemed to be an
Adverse Person (as that term is defined in the Rights Agreement), and
(c) amended the provisions of the Rights Agreement (i) to lower, for
at least thirty-eight months following the Closing, the threshold for
definition of an Acquiring Person from beneficial ownership of 20% of
the then issued and outstanding Common Stock to beneficial ownership
10% of the then issued and outstanding Common Stock, and (ii) to
change the Initial Expiration Date to a date that is at least
thirty-eight months following the Closing.
5. Section 3.7 is amended by striking the words "upon ratification
within one year hereof of the sale of Shares described in this Agreement by
shareholders of Seller (including holders of the Shares)".
6. Article III is amended by adding the following after Section 3.14:
3.15 Shareholder Meeting Matters. Seller shall have held
the Shareholder Meeting and the shareholders of Seller shall have
approved the Shareholder Meeting Matters by the requisite votes
required by applicable law.
3.16 Xxxxxx Xxxxx. Xxxxxx Xxxxx shall not be prevented from
serving on the Board of Directors of Seller or from acting chief
operating officer of Seller by (a) any action of a state or federal
governmental authority, or (b) his death or disability. No state or
federal governmental authority shall have threatened to file a
lawsuit or institute administrative action (x) to prevent Xxxxxx
Xxxxx from so serving, (y) to limit his role as
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officer or director of Seller, or (z) to seek civil or criminal
damages or penalties against any of the parties hereto or Tutor
should he serve as an officer or director of Seller, and, in the
reasonable judgment of RCBA, there shall not be a material risk of
such a suit or action. Seller shall have entered into a management
agreement with Xxxxx-Xxxxxx Corporation in substantially the form of
Exhibit 3.16 hereto, with such changes as shall be required by any
state or federal governmental authority (which changes are reasonably
acceptable to Seller, Xxxxx-Xxxxxx Corporation, and RCBA), and such
agreement shall be in full force and effect.
3.17 Conflict of Interest. RCBA has previously advised Seller of
its insistence that RCBA, PB, and Seller avoid any and all possible
conflict of interest issue arising out of PB's proposed investment in
Seller and the relationship of a principal of RCBA to a United States
Senator. There fore, it is a condition to Closing (a) that the
Senate Ethics Committee and regular counsel for the Senator on such
matters shall each have given an opinion concerning RCBA's
involvement with Seller that, in the reason able judgment of RCBA,
does not require the imposition of material restrictions on the
business of Seller or upon the ability of the Senator to vote on
matters of concern to her constituents, and (b) that RCBA be assured
by the Executive Committee of Seller's Board of Directors that it
will cause Seller not to bid for a project when and if advised of
RCBA's view that such bid could create a significant risk of exposing
Seller, RCBA, PB, and/or the Senator to a conflict of interest
problem.
7. Article IV is amended by adding the following after Section 4.9:
4.10 Shareholder Meeting Matters. Seller shall have held
the Shareholder Meeting and the shareholders of Seller shall have
approved the Shareholder Meeting Matters by the requisite votes
required by applicable law.
8. Section 5.22 is amended and restated in its entirety as follows:
5.22 No Material Adverse Change. Since the latest date as of
which information with respect to the following items is given in the
SEC Documents filed prior to July 24, 1996 and except as contained in
the Transaction Documents and the transactions contemplated therein,
there has not been:
(a) any change that by itself or together with other
changes has a Material Adverse Effect; or
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(b) any damage, destruction or loss (whether or not
covered by insurance) materially adversely affecting the properties
or business of Seller; or
(c) except (i) as provided for in this Agreement or in the
other Transaction Documents, or (ii) for the warrants to be issued to
the banks listed on Exhibit 3.9 on the Closing Date, any change in
the authorized capital of Seller or in its outstanding securities or
any change in its ownership interests or any grant of any options,
warrants, calls, conversion rights or commitments; or
(d) any declaration or payment of any dividend or
distribution in respect of the capital stock or any direct or
indirect redemption, purchase or other acquisition of any of the
capital stock of Seller (other than in accordance with the credit
agreements described in Exhibit 3.9 and consented to by RCBA); or
(e) any material increase in the compensation, bonus,
sales commissions or fee arrangements payable or to become payable by
Seller to any of its officers directors, stockholders, employees,
consultants or agents, except for ordinary and customary bonuses and
salary increased for employees in accordance with past practice; or
(f) any work interruptions, labor grievances or claims
filed, or any similar event or condition of any character, materially
adversely affecting the business or future prospects of Seller; or
(g) any sale or transfer, or any agreement to sell or
transfer, any material assets property or rights of Seller to any
person (other than any disposition by Seller of assets on terms
substantially similar to those already disclosed to RCBA or otherwise
consented to by RCBA); or
(h) any cancellation, or agreement to cancel, any material
indebtedness or other material obligation owing to Seller, provided
that Seller may negotiate and adjust bills in the course of good
faith disputes with customers in a manner consistent with past
practice; or
(i) any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any interest in any of the
material assets, property or rights of Seller or requiring consent of
any party to the transfer and assignment of any such assets, property
or rights; or
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(j) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any material property, rights or
assets outside of the ordinary course of business of Seller; or
(k) any waiver of any material rights or claims of Seller;
or
(l) any material breach, amendment or termination of any
material contract, agreement, license, permit or other right to which
Seller is a party; or
(m) any material transaction by Seller outside the
ordinary course of business; or
(n) any capital expenditures or commitment by Seller,
either individually or in the aggregate, exceeding $5,000,000.00; or
(o) any change in accounting methods or practices
(including any change in depreciation or amortization policies or
rates) by Seller or the revaluation by Seller of any of its assets
(other than a change in the valuation of the assets described in the
parenthetical clause to Section 5.22(g) in connection with any such
disposition); or
(p) any creation or assumption by Seller of any mortgage,
pledge, security interest or lien or other encumbrance on any asset
other than:
(i) liens arising under existing lease financing
arrangements which are not material,
(ii) liens for taxes, assessments or other
governmental charges not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of Seller in accordance
with GAAP;
(iii) liens granted to the banks listed on Exhibit
3.9; or
(iv) carriers', warehousemen's, mechancs',
materialmen's, repairmen's or other like liens arising by operation
of law in the ordinary course of business of Seller so long as (A)
the underlying obligations are not overdue for a period of more than
60 days or (B) such liens as are being contested in good faith and by
appropriate proceedings
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and adquate reserves with respect thereto are maintained on the books
of Seller in accordance with GAAP;
(q) any entry into, amendment of, relinquishment,
termination or non-renewal by Seller of any contract, lease
transaction, commitment or other right or obligation that would have
a Material Adverse Effect; or
(r) any loan by Seller to any person or entity, incurring
by Seller, of any indebtedness, guaranteeing by Seller of any
indebtedness, issuance or sale of any debt securities of Seller or
guaranteeing of any debt securities of others (other than loans to
Seller from construction joint ventures in which Seller owns an
interest not to exceed, in the aggregate, $35,000,000); or
(s) the commencement or notice or threat of commencement
of any material lawsuit or proceeding against or investigation of
Seller or any of its affairs; or
(t) negotiation or agreement by Seller or any officer or
employee thereof to do any of the things described in the preceding
clauses (a) through (s) (other than negotiations with RCBA and its
representatives regarding the transactions contemplated by this
Agreement).
9. Article V is amended by adding the following after Section 5.25:
5.26 Proxy Statement. The Proxy Statement, sent to
shareholders of Seller after the date hereof but before Closing, will
not have included any untrue statement of a material fact, or omitted
to state any material fact, necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation shall not
encompass any information in the Proxy Statement that was furnished
in writing to the Seller by or on behalf of Purchaser or RCBA for use
specifically in connection with the preparation of the Proxy
Statement.
5.27 Liquidated Damages Clauses. Except as set forth on
Schedule 5.27, Seller does not currently have any construction
contract that does not have a liquidated damages provision
establishing Seller's maximum potential liability in the event of a
breach.
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5.28 Ownership. To the knowledge of Seller: (a) at no time
during the preceding thirty-six months was there any person or group
that had beneficial ownership of more than five percent (5%) of the
$21.25 Preferred Stock, (b) the only persons or groups that have
beneficial ownership of more than five percent (5%) of the Common
Stock are listed on Schedule 5.28, (c) Schedule 5.28 shows the
ownership of Common Stock of the persons or groups referred to in
clause (b) of this Section as of the dates shown on Schedule 5.28,
(d) the persons or groups referred to in clause (b) of this section
do not own, directly or indirectly, any shares of the $21.25
Preferred Stock except as otherwise shown on Schedule 5.28, and (e)
at no time during the preceding thirty-six months did any of the
persons or groups listed on Schedule 5.28 own fewer shares of Common
Stock than the lowest amount shown with respect to such person or
group on Schedule 5.28.
10. Section 7.2(d) is amended by adding the following at the end thereof:
"the shareholders of Seller shall have approved of such Bylaw Amendments, and".
11. Section 7.5(a) and (b) are each amended by inserting the phrase " AS
AMENDED," after the words "JULY 24, 1996".
12. Section 7.9 is amended and restated in its entirety as follows:
7.9 Shareholder Meeting. As promptly as reasonably
possible after the date hereof, Seller shall call and hold a special
meeting of the shareholders of Seller ("Shareholder Meeting"), to
obtain shareholder approval for the issuance of the Class B Shares
(in a manner that complies with the requirements of American Stock
Exchange Rule 713), and the Bylaw Amendments (such items the
"Shareholder Meeting Matters"). Seller shall recommend, and shall
use commercially reasonable efforts (including the preparation and
circulation of the Proxy Statement) to obtain approval for the
Shareholder Meeting Matters.
13. Section 7.10 is amended and restated in its entirety as follows:
7.10 Proxy Statement. The Proxy Statement shall not be
filed, and no amendment or supplement to the Proxy Statement shall be
made, without consultation with RCBA and Purchaser. Seller shall
notify RCBA and Purchaser promptly of the receipt by it of any
comments from the SEC or its staff and of any request by the SEC for
amendments or supplements to the Proxy Statement and shall supply
RCBA and Purchaser with copies of all
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correspondence between it and its representatives, on the one hand,
and the SEC or the members of its staff, on the other hand, with
respect to the Proxy Statement.
14. Section 7.12 is amended by striking the phrase: "Subsequent to
approval by the shareholders of the Seller of the Shareholder Meeting Matters
at the Shareholders Meeting,".
15. Article VII is amended by adding the following after Section 7.19:
7.20 Appointment of Designated Directors. Seller
covenants and agrees that the holders of a majority of the Conversion
Shares (as that term is defined in the Certificate of Vote) shall
have the right, by sending written notice to Seller's board of
directors, to nominate for election, designate, or remove Designated
Directors and members of the Executive Committee (as and to the
extent provided in Section 13 of the Certificate of Vote to the
holders of a majority of the Series B Cumulative Convertible
Preferred Stock), if all of the following conditions are satisfied:
(a) there are no shares of Series B Cumulative Convertible
Preferred Stock issued and outstanding;
(b) notwithstanding the absence of oustanding shares of
Series B Cumulative Convertible Preferred Stock, pursuant to the
Certificate of Vote the number of Designated Directors pursuant to
the Certificate of Vote is equal to or greater than one (1);
(c) the holders of the Conversion Shares providing such
notice certify the number of Conversion Shares that are outstanding,
the number of shares that each of them owns, and that, in aggregate,
they own a majority of the Conversion Shares outstanding (or the
Company reasonably determines that they own such a majority); and
(d) in the case of the nomination or election of a
director, the notice contains the information with respect to the
nominee which would be required by the then applicable rules of the
Securities and Exchange Commission or the requirements of the
national stock exchange on which the Company's Common Stock is then
listed to be included in the Company's proxy statement for a meeting
of stockholders at which such nominee were to be elected and the
Board does not reasonably object to such nominee.
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Upon receipt of a notice referred to in the preceding sentence, the
Board of directors of Seller shall, unless prohibited by applicable
law, cause such nominations, designations, and removals of Designated
Directors and members of the Executive Committee to be made
effective.
16. Article IX is amended by replacing "September 9, 1996" with "January
31, 1997 " and by replacing "October 9, 1996" with "February 28, 1997".
17. Section 10.3(b)(ii) is amended by replacing the phrase "and 4.8" with
the phrase ", 4.8, or 4.10".
18. Section 10.3(c)(iii) is amended by replacing the phrase "and 4.8"
with the phrase ", 4.8, or 4.10".
19. Article XI is amended and restated in its entirety as follows:
All representations and warranties contained in this Agreement
shall survive the execution of this Agreement and the delivery of the
Shares for a period of three years from the date of such delivery.
20. Article XIII is amended by adding at the end thereof the following:
In addition, Purchaser shall have the right, prior to Closing, to
assign its rights and obligations hereunder to purchase a specified
number of shares (but not to exceed 65,000 shares) at the price
provided by this Agreement to financially responsible third parties
(other than persons to whom transfer would, following Closing, be
prohibited pursuant to Section 14.12 or be prohibited by applicable
law). Such person or persons (each, a "Permitted Assignee") and
Purchaser shall execute an assumption and assignment agreement (the
"Assignment Agreement") reasonably acceptable to Seller whereby the
Permitted Assignee agrees to be bound by the terms and conditions of
the Agreement and makes the representations and warranties called for
by Article VI (subject only to such changes as are necessary to
address the legal nature of such person). Once such assignment is
duly executed, (a) the term "Purchaser" as used in this Agreement and
the Transaction Documents shall mean PB Capital, L.P. and such
Permitted Assignee, and (b) PB Capital, L.P. shall be released from
its obligations under this Agreement insofar as they relate to its
obligation to purchase the number of shares that such Permitted
Assignee agreed to purchase under the Assignment Agreement.
21. Section 14.2 is amended and restated as follows:
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14.2 Expenses. Except as set forth in Section 10.3, Amendment
No. 7 to Bridge Credit Agreement and Amendment No. 3 to Credit
Agreement, that certain letter agreement dated as of November 7, 1996
between Seller and Purchaser, or the following sentence, each party
shall bear its own expenses. Seller acknowledges that RCBA has
incurred significant expenses in the interest of expediting and
completing the transaction, and has also incurred due diligence
expenses that will benefit Seller on an ongoing basis; therefore,
immediately following Closing, Seller will reimburse RCBA for its
out of pocket expenses (including professional fees), but such
reimbursement shall not exceed $150,000 unless RCBA and Seller
otherwise agree.
22. Exhibit 1.7 is amended by replacing it in its entirety with Exhibit
1.7 hereto.
23. Exhibit 1.32 is amended by replacing it in its entirety with Exhibit
1.32 hereto.
24. Exhibit 3.12 is amended by replacing it in its entirety with Exhibit
3.12 hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment.
PB CAPITAL PARTNERS, X.X. XXXXXX CORPORATION
By: Xxxxxxx X. Xxxx & Associates, L.P.,
its General Partner
By: /s/ XXXXX X. XXXXXX
By: Xxxxxxx X. Xxxx & Associates, ----------------------------
Inc., its General Partner Name: Xxxxx X. Xxxxxx
Title: Chairman and President
By: /s/ X. X. XXXX JR.
---------------------------
Name: Xxxxxxxxx X. Xxxx Xx.
Title: Managing Director
XXXXXXX X. XXXX & ASSOCIATES, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its General Partner
By: /s/ X. X. XXXX JR.
---------------------------
Name: Xxxxxxxxx X. Xxxx Xx.
Title: Managing Director
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SCHEDULE LIST
1. Revised Exhibit 1.7
2. Revised Exhibit 1.32
3. Revised Exhibit 3.12
4. Exhibit 3.16
5. Revised Exhibit 1.6
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CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF PERINI CORPORATION
(PURSUANT TO CHAPTER 156B, SECTION 26 OF THE
GENERAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS)
------------------------
Perini Corporation, a corporation organized and existing under the
laws of the State of Massachusetts (hereinafter called the "Corporation"), and
having its principal office in this State at 00 Xx. Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000, hereby certifies to the State Department of Massachusetts
that:
FIRST: Pursuant to the authority granted to and vested in the Board of
Directors of the Corporation (hereinafter called the "Board of Directors" or
the "Board") in accordance with the provisions of Article ________ of the
Restated Articles of Organization of the Corporation (the "Articles"), the
Board of Directors, at a meeting duly convened and held on ____ __, 1996,
regarding the sale and issuance by the Corporation of cumulative convertible
preferred stock, adopted resolutions (the "Resolutions") classifying 500,000
shares of Preferred Stock of the Corporation into a single series to be
designated as "Series B Cumulative Convertible Preferred Stock" and setting the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of such shares as follows:
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
1. Designation and Amount. There shall be a series of
Preferred Stock designated as "Series B Cumulative Convertible
Preferred Stock" and the number of shares constituting such series
shall be 500,000, of which 150,150 shall be issued initially (the date
of such issuance, the "Original Issue Date") and the remainder shall
be reserved for issuance as dividends pursuant to Section 3 below. The
number of shares designated as shares of Series B Cumulative
Convertible Preferred Stock may be decreased (but not increased) by
the Board of Directors without a vote of stockholders; provided,
however, that such number may not be decreased without the approval of
the holders of 66-2/3% of the then outstanding shares of Series B
Cumulative Convertible Preferred Stock.
2. Preemptive Rights. Holders of shares of Series B
Cumulative Convertible Preferred Stock are not entitled to any
preemptive or subscription rights in respect of any securities of the
Corporation.
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3. Dividends.
(a) The holders of shares of Series B Cumulative
Convertible Preferred Stock shall be entitled to receive, when and as
authorized and declared by the Board of Directors out of funds at the
time legally available therefor, dividends at the Cash Dividend Rate
(defined below) per annum times the Liquidation Preference (defined
below in Section 4(a)) if paid in cash, or at the In-Kind Dividend
Rate (defined below) per annum times the Liquidation Preference if
paid in additional shares of Series B Cumulative Convertible Preferred
Stock, and no more, which shall be fully cumulative, shall accrue with
respect to any such share from the original date of issuance of such
share without interest and shall be payable quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year (a
"Dividend Payment Date"), commencing March 15, 1997 (except that if
any such date is a Saturday, Sunday or legal holiday, then such
dividend shall be payable on the next day that is not a Saturday,
Sunday or legal holiday) to holders of record as they appear upon the
stock transfer books of the Corporation on each March 1, June 1,
September 1 and December 1 immediately preceding the payment dates, or
such other dates as shall be fixed at the time of the authorization
and declaration by the Board of Directors (or, to the extent permitted
by applicable law, a duly authorized committee thereof), which date
shall not be less than ten (10) nor more than sixty (60) days
preceding the relevant dividend payment date. For purposes hereof,
the term "legal holiday" shall mean any day on which banking
institutions are authorized to close in New York, New York. The
amount of dividends payable per share of Series B Cumulative
Convertible Preferred Stock for each quarterly dividend period shall
be computed by dividing the annual dividend amount by four and shall
include fractional shares. The amount of dividends payable for the
initial dividend period and any period shorter than a full quarterly
period during which shares are outstanding shall be computed on the
basis of a 360-day year of twelve 30-day months and the actual number
of days elapsed in the period in which payable. No interest shall be
payable in respect of any dividend payment on the Series B Cumulative
Convertible Preferred Stock or any other Parity Dividend Stock (as
hereinafter defined) which may be in arrears. The "Cash Dividend
Rate" shall be 9 percent per annum if a Special Default (defined
below) has occurred and is continuing at any time during the
applicable Annual Payment Period (defined below) or Semiannual Payment
Period (defined below), and shall be 7 percent per annum at all other
times. The "In-Kind Dividend Rate" shall be 12 percent per annum if a
Special Default has occurred and is continuing at any time during the
applicable Annual Payment Period or Semiannual Payment Period, and
shall be 10 percent per annum at all other times.
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(b) Any dividend payments may be made, in the
sole discretion of the Board of Directors, as follows (for purposes of
this determination, the Designated Directors (defined below in Section
13) shall not vote):
(i) Prior to December 15, 1999:
(1) on or prior to the Original
Issue Date and prior to December 15, 1997 and 1998, the Board of
Directors shall determine whether dividend payments payable on the
next four Dividend Payment Dates beginning December 15 (each, an
"Annual Payment Period") shall be paid in (i) cash or (ii) additional
shares of Series B Cumulative Convertible Preferred Stock valued at
the Liquidation Preference (but not in any combination of cash and
additional shares of Series B Cumulative Convertible Preferred Stock);
provided, however, that the first Annual Payment Period shall commence
March 15, 1997, and run for three Dividend Payment Dates if the
Original Issue Date is between December 15, 1996 and March 15, 1997;
(2) in the event that, during an
Annual Payment Period when the Board has elected to pay dividends on
the Series B Cumulative Convertible Preferred Stock in cash, the
Corporation fails to authorize, declare and pay in cash on a Dividend
Payment Date the full amount of the cash dividend due at the Cash
Dividend Rate, then, on or prior to such Dividend Payment Date, the
Board shall authorize, declare and pay a supplemental stock dividend
in shares of Series B Cumulative Convertible Preferred Stock (valued
at the Liquidation Preference) equal to the difference between the
dividend that would have been paid in-kind at the In-Kind Dividend
Rate (assuming that the Board had elected to pay dividends for such
period in-kind and assuming that a Special Default existed) and the
cash dividend actually declared and paid on such Dividend Payment Date
and on the previous Dividend Payment Date during such Annual Payment
Period, if any.
(ii) On or after December 15, 1999:
(1) On or prior to December 15,
1999 and on or prior to each June 15 and December 15 thereafter, the
Board of Directors shall determine whether dividend payments accruing
on the next two Dividend Payment Dates beginning on such Dividend
Payment Date (each a "Semiannual Payment Period") shall be paid in (i)
cash or (ii) additional shares of Series B Cumulative Convertible
Preferred Stock valued at the Liquidation Preference (but
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not in any combination of cash and additional shares of Series B
Cumulative Convertible Preferred Stock);
(2) in the event that, during a
Semiannual Payment Period when the Board has elected to pay dividends
on the Series B Cumulative Convertible Preferred Stock in cash, the
Corporation fails to authorize, declare and pay in cash on a Dividend
Payment Date the full amount of the cash dividend due at the Cash
Dividend Rate, then, on such Dividend Payment Date, the Board shall
authorize, declare and pay a supplemental stock dividend in shares of
Series B Cumulative Convertible Preferred Stock (valued at the
Liquidation Preference) equal to the difference between the dividend
that would have been paid in-kind at the In-Kind Dividend Rate
(assuming that the Board had elected to pay dividends for such period
in-kind and assuming that a Special Default existed) and the cash
dividend actually declared and paid on such Dividend Payment Date and
on the previous Dividend Payment Date during such Semiannual Payment
Period, if any.
(iii) All shares of Series B Cumulative
Convertible Preferred Stock issued as a dividend with respect to the
Series B Cumulative Convertible Preferred Stock shall thereupon be
duly authorized, validly issued, fully paid and nonassessable.
(c) In the case of shares of Series B Cumulative
Convertible Preferred Stock issued on the Original Issue Date,
dividends shall accrue and be cumulative from such date. In the case
of shares of Series B Cumulative Convertible Preferred Stock issued as
a dividend on shares of Series B Cumulative Convertible Preferred
Stock, dividends shall accrue and be cumulative from the dividend
payment date in respect of which such shares were (or should have
been) issued as a dividend.
(d) Each fractional share of Series B Cumulative
Convertible Preferred Stock outstanding shall be entitled to a ratably
proportionate amount of all dividends accruing with respect to each
outstanding share of Series B Cumulative Convertible Preferred Stock,
and all such dividends with respect to such outstanding fractional
shares shall be cumulative and shall accrue (whether or not declared),
and shall be payable in the same manner and at such times as provided
for above with respect to dividends on each outstanding share of
Series B Cumulative Convertible Preferred Stock. Each fractional
share of Series B Cumulative Convertible Preferred Stock outstanding
shall also be entitled to a ratably proportionate amount of any other
distributions made with respect to each outstanding share of Series B
Cumulative Convertible Preferred Stock, and all such
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distributions shall be payable in the same manner and at the same time
as distributions on each outstanding share of Series B Cumulative
Convertible Preferred Stock.
(e) No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any shares of
Common Stock or other stock of the Corporation ranking junior as to
dividends to the Series B Cumulative Convertible Preferred Stock
(collectively, the "Junior Dividend Stock") except for dividends or
distributions that are not Extraordinary Equity Payments (defined
below in Section 8(h)).
(f) If at any time any dividend on the $21.25
Convertible Exchangeable Preferred Stock (the "$21.25 Preferred
Stock") or any other stock of the Corporation hereafter issued ranking
senior as to dividends to the Series B Cumulative Convertible
Preferred Stock (collectively with the $21.25 Preferred Stock, the
"Senior Dividend Stock") shall be in arrears, in whole or in part,
then (except to the extent allowed by the terms of such Senior
Dividend Stock) no cash dividend shall be authorized, declared, paid
or set apart for payment on the Series B Cumulative Convertible
Preferred Stock unless and until all accrued and unpaid dividends with
respect to the Senior Dividend Stock for all payment periods ending on
or prior to the date of payment of the current dividend on the Series
B Cumulative Convertible Preferred Stock shall have been authorized,
declared and paid or set apart for payment. Dividends payable in
additional shares of Series B Cumulative Convertible Preferred Stock
are permitted and not subordinated in payment to payment of dividends
on the Senior Dividend Stock.
(g) No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any class or
series of the Corporation's stock heretofore or hereafter issued
ranking, as to dividends, on a parity with the Series B Cumulative
Convertible Preferred Stock (the "Parity Dividend Stock") for any
period unless full cumulative dividends have been, or
contemporaneously are, authorized, declared and paid or set apart in
trust for such payment on the Series B Cumulative Convertible
Preferred Stock for all dividend payment periods terminating on or
prior to the date of payment of such full cumulative dividends. No
full dividends (other than dividends payable in additional shares of
Series B Cumulative Convertible Preferred Stock) shall be authorized,
declared, paid or set apart for payment on the Series B Cumulative
Convertible Preferred Stock for any period unless full cumulative
dividends have been, or contemporaneously are, authorized, declared
and paid or set apart for payment on the Parity Dividend Stock for all
dividend periods terminating on or prior to the date of payment of
such full cumulative dividends. When accrued dividends are not paid
- 5 -
18
in full on the Series B Cumulative Convertible Preferred Stock and the
Parity Dividend Stock, all cash dividends authorized, declared and
paid or set apart for payment on the Series B Cumulative Convertible
Preferred Stock and the Parity Dividend Stock shall be authorized,
declared, paid or set apart for payment pro rata so that the amount of
dividends authorized, declared, paid or set apart for payment per
share on the Series B Cumulative Convertible Preferred Stock and the
Parity Dividend Stock shall in all cases bear to each other the same
ratio that accrued and unpaid dividends per share on the Series B
Cumulative Convertible Preferred Stock and the Parity Dividend Stock
bear to each other.
4. Liquidation Preference.
(a) The liquidation preference of the Series B
Cumulative Convertible Preferred Stock shall be $200.00 per share (the
"Liquidation Preference"). Subject to the full payment of the
liquidation preferences of the $21.25 Preferred Stock and the shares
of stock of the Corporation hereafter issued ranking senior as to
liquidation rights to the Series B Cumulative Convertible Preferred
Stock (the "Senior Liquidation Stock"), in the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of Series B Cumulative Convertible
Preferred Stock shall be entitled to receive out of the assets of the
Corporation, whether such assets are stated capital or surplus of any
nature, an amount equal to the dividends accrued and unpaid on such
shares on the date of final distribution to such holders, whether or
not declared, without interest, plus a sum equal to the Liquidation
Preference, and no more, before any payment shall be made or any
assets distributed to the holders of shares of Common Stock or any
other class or series of the Corporation's stock hereafter issued
ranking junior as to liquidation rights to the Series B Cumulative
Convertible Preferred Stock (collectively, the "Junior Liquidation
Stock").
(b) The assets of the Corporation available for
distribution after the liquidation preferences of the Senior
Liquidation Stock are fully met shall be distributed ratably among the
holders of the Series B Cumulative Convertible Preferred Stock and any
other class or series of the Corporation's stock hereafter issued
ranking on a parity as to liquidation rights with the Series B
Cumulative Convertible Preferred Stock in proportion to the respective
preferential amounts to which each is entitled (but only to the extent
of such preferential amounts); provided, however, that after payment
in full of the Liquidation Preferences, the holders of the shares of
the Series B Cumulative Convertible Preferred Stock shall not be
entitled to any further participation in any distribution of assets by
the Corporation. Neither a consolidation or merger of the Corporation
with or into
- 6 -
19
another corporation nor a merger of any other corporation with or into
the Corporation, nor a sale or transfer of all or any part of the
Corporation's assets for cash, securities or other property, will be
considered a liquidation, dissolution or winding up of the
Corporation.
5. Limitation on Share Repurchase. If at any time any
dividends on the Series B Cumulative Convertible Preferred Stock shall
be in arrears or the Corporation shall have failed to make any
purchase of shares of Series B Cumulative Convertible Preferred Stock
tendered to it pursuant to Section 7, the Corporation shall not -- and
the Corporation shall not permit any other corporation or legal entity
directly or indirectly controlled by the Corporation (collectively,
the "subsidiaries") to -- repurchase, redeem, retire or otherwise
acquire any shares of Junior Dividend Stock, Junior Liquidation
Stock, or any warrants, rights, calls or options exercisable for or
convertible into any shares of Junior Dividend Stock or Junior
Liquidation Stock, except by conversion into or exchange for shares of
Junior Dividend Stock or Junior Liquidation Stock and other than
purchases, redemptions, retirements or acquisitions made pursuant to
and as required by the terms of any employee incentive or benefit plan
of the Corporation or any subsidiary of the Corporation in effect on
July 24, 1996 or as amended or adopted by the Corporation with
approval of the Executive Committee of the Corporation.
Notwithstanding the preceding sentence, any subsidiary which is wholly
owned by the Corporation may repurchase, redeem, retire or otherwise
acquire shares of its stock.
6. Redemption at Option of the Corporation.
(a) So long as shares of Common Stock shall have
traded on the Primary Exchange (defined below) (i) for at least forty
(40) of the forty-five (45) trading days (each of which trading days
shall be after the third anniversary of the Original Issue Date (the
"Third Anniversary")) immediately preceding the Determination Date
(defined below), and (ii) on each of the ten (10) consecutive trading
days immediately prior to the Determination Date (defined below), at a
Closing Price (as hereinafter defined) in excess of the Hurdle
Percentage (defined below) of the conversion price then in effect for
the Series B Cumulative Convertible Preferred Stock for each such
trading day, all, but not less than all, of Series B Cumulative
Convertible Preferred Stock may thereafter be redeemed at the election
of the Board of Directors made on any date (the "Determination Date")
on or after the Third Anniversary, for the Redemption Price (defined
below in Section 7(b)), plus an amount in cash equal to accrued and
unpaid dividends thereon, whether or not authorized or declared, to
but excluding the date fixed for redemption. For purposes of the
determination of the Board called for in the
- 7 -
20
preceding sentence, the Designated Directors (defined below in Section
13) shall not vote. The date on which such shares shall be redeemed
shall be a date that is at least ten (10), but no more than thirty
(30), business days after the Determination Date (during which period
the holders of the Series B Cumulative Convertible Preferred Stock
may, but shall not be required to, convert such stock into Common
Stock). The Hurdle Percentage shall be 150% from and after the Third
Anniversary, and to the fifth anniversary of the Original Issue Date;
thereafter, the Hurdle Percentage shall be 125%. "Primary Exchange"
shall mean the American Stock Exchange or such other principal
national securities exchange or quotation system on which the Common
Stock of the Corporation is quoted or listed or admitted to trading.
(b) Not more than thirty (30) nor less than ten
(10) business days prior to the redemption date fixed by the Board of
Directors, the Corporation shall give notice by hand or overnight
courier to the holders of record of shares of the Series B Cumulative
Convertible Preferred Stock to be redeemed, addressed to such holders
at their last addresses as shown upon the stock transfer books of the
Corporation. Each such notice of redemption shall specify the date
fixed for redemption; the Redemption Price (defined below in Section
7(b)) plus an amount in cash equal to accrued and unpaid dividends
thereon, whether or not authorized or declared, to but excluding the
date fixed for redemption; the place or places of payment; that
payment will be made upon presentation and surrender of the shares of
Series B Cumulative Convertible Preferred Stock; that on and after the
redemption date dividends will cease to accrue on such shares; the
then effective conversion price pursuant to Section 8; and that the
right of holders to convert shares of Series B Cumulative Convertible
Preferred Stock shall terminate at the close of business on the
business day prior to the redemption date (unless the Corporation
defaults in the payment of the Redemption Price plus an amount in cash
equal to accrued and unpaid dividends thereon, whether or not
authorized or declared, to but excluding the date fixed for
redemption).
(c) Any notice as herein provided shall be deemed
to be given when delivered to the address specified in the preceding
section. On or after the date fixed for redemption as stated in such
notice, each holder of the shares called for redemption, unless such
holder has exercised such holder's right to convert shares of Series B
Cumulative Convertible Preferred Stock as provided above, shall
surrender the certificate representing such shares to the Corporation
at the place designated in such notice and shall thereupon be entitled
to receive payment of the Redemption Price (defined below in Section
7(b)) plus an amount in cash equal to accrued and unpaid dividends
thereon, whether or not authorized or declared, to but excluding the
date fixed for redemption. If less than all the shares
- 8 -
21
evidenced by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
Notice having been given as aforesaid, if, on the date fixed for
redemption, funds necessary for the redemption shall be available
therefor and shall have been irrevocably deposited or set aside in
trust for the holders of the shares of Series B Cumulative Convertible
Preferred Stock, then, notwithstanding that the certificates
representing any shares so called for redemption shall not have been
surrendered, dividends with respect to the shares so called shall
cease to accrue after the date fixed for redemption, such shares shall
no longer be deemed outstanding, the holders thereof shall cease to be
stockholders of the Corporation and all rights whatsoever with respect
to the shares so called for redemption (except the right of the
holders to receive the Redemption Price plus an amount in cash equal
to accrued and unpaid dividends thereon, whether or not authorized or
declared, to but excluding the date fixed for redemption, without
interest upon surrender of their certificates therefor) shall
terminate. If funds legally available for such purpose are not
sufficient for redemption of the shares of Series B Cumulative
Convertible Preferred Stock to be redeemed, then the certificates
representing such shares shall be deemed not to be surrendered, such
shares shall remain outstanding and the rights of holders of shares of
Series B Cumulative Convertible Preferred Stock thereafter shall
continue to be only those of a holder of shares of the Series B
Cumulative Convertible Preferred Stock.
(d) Except as provided in Section 7, the shares
of Series B Cumulative Convertible Preferred Stock shall not be
subject to the operation of any mandatory purchase, retirement or
sinking fund.
7. Mandatory Repurchase and Repurchase at Option of the
Holder.
(a) On the eighth anniversary of the Original
Issue Date, the Corporation shall purchase from each holder of shares
of Series B Cumulative Convertible Preferred Stock one-third of the
number of shares of the Series B Cumulative Convertible Preferred
Shares held by such holder on such eighth anniversary. On the ninth
anniversary of the Original Issue Date, the Corporation shall purchase
from each holder of shares of Series B Cumulative Convertible
Preferred Stock one-half of the number of shares of the Series B
Cumulative Convertible Preferred Shares held by such holder on such
ninth anniversary. On the tenth anniversary of the Original Issue
Date, the Corporation shall purchase from each holder of shares of
Series B Cumulative Convertible Preferred Stock the number of shares
of the Series B Cumulative Convertible Preferred Shares held by such
holder on such tenth anniversary. Repurchases made pursuant to this
Section 7(a) shall be effected on such anniversary date (or such other
day as the
- 9 -
22
holder and the Corporation may agree) and shall be for the Redemption
Price (defined below in Section 7(b)) plus an amount in cash equal to
the accrued and unpaid dividends thereon, whether or not authorized or
declared, to but excluding the date fixed for repurchase. Any shares
of Series B Cumulative Convertible Preferred Stock which would have
accrued but have not been paid on any shares tendered for purchase
shall be deemed to be tendered for purchase.
(b) (i) If one or more Special Defaults
shall occur at any time or from time to time on or after the Original
Issue Date, each holder of shares of the Series B Cumulative
Convertible Preferred Stock shall have the right, at such holder's
option exercisable at any time within 120 days after the happening of
each such Special Default, to require the Corporation to purchase all
or any part of the shares of Series B Cumulative Convertible Preferred
Stock then held by such holder as such holder may elect at the
Redemption Price (defined below) plus, in each case, an amount in cash
equal to the accrued and unpaid dividends thereon, whether or not
authorized or declared, to but excluding the date fixed for
redemption. Any shares of Series B Cumulative Convertible Preferred
Stock which would have accrued but have not been paid on any shares
tendered for purchase shall be deemed to be tendered for purchase.
The "Redemption Price" shall be the Liquidation Preference where there
have been no Special Defaults, and -- after there has been one or more
Special Defaults -- shall be 130% of the greater of the Liquidation
Preference or the market value of the Common Stock (valued at the
average of the Closing Prices on the preceding twenty (20) trading
days immediately prior to the occurrence of the Special Default) into
which the Series B Cumulative Convertible Preferred Stock would then
be convertible assuming such shares to be immediately convertible
(whether or not such shares were then actually convertible);
(ii) A "Special Default" shall mean any
of the following events which occur after the Original Issuance Date
and while any shares of the Series B Cumulative Convertible Preferred
Stock are outstanding:
(1) the disbanding or other
restructuring, reorganization, or reconstitution (including without
limitation change in the number of members) of the Executive Committee
of the Board without the prior written approval of a majority of the
members of the Executive Committee who were members prior to such
change (and, for so long as the holders of the Series B Cumulative
Convertible Preferred Stock shall have the right to designate more
than one director to the Executive Committee pursuant to Section 13(b)
below, including the members so designated by the holders of the
Series B Cumulative Convertible Preferred Stock);
- 10 -
23
(2) the taking of any of the
following actions by the Corporation or the Board without the approval
of a majority of the members of the Executive Committee of the Board
(whether or not such action was taken by the Board in view of its
fiduciary duties pursuant to the last sentence of Section 3.3(A) of
the By-Laws of the Corporation, as amended): (A) any borrowing or
guarantee by the Corporation exceeding $15 million, (B) except for
issuance of stock or stock options pursuant to the Corporation's
incentive compensation plans or programs, any issuance of stock
(whether common or preferred, whether voting or non-voting, whether
junior, pari passu, or senior to the Series B Cumulative Convertible
Preferred Stock) other than Common Stock of the Corporation in an
aggregate amount not exceeding five percent (5%) of the Common Stock
of the Corporation issued and outstanding on the Original Issue Date,
(C) any strategic alliance (other than a construction joint venture)
involving a capital commitment by the Corporation exceeding $5
million, (D) any asset sale by the Corporation or lease as lessor
exceeding $5 million (other than equipment dispositions in the normal
course of business); (E) any redemption or amendment of the Rights
(defined below) or the preferred stock of the Corporation issuable
upon the exercise of such Rights, or any amendment of the Rights
Agreement (defined below), and (F) any termination of (other than a
termination upon expiration) or amendment to the management agreement
between the Corporation and Xxxxx-Xxxxxx Corporation; provided,
however, that for purposes of this Section 8(b)(ii)(2), approval of
the Executive Committee shall not be required for any decision by the
Board of Directors to redeem the Series B Cumulative Convertible
Preferred Stock pursuant to Section 6(a);
(3) any change by the Corporation
in the composition of the Executive Committee of the Board which
results in members of such Committee selected by the holders of the
Series B Cumulative Convertible Preferred Stock pursuant to Section
13(b) below being fewer than the number of directors that the holders
of the Series B Cumulative Convertible Preferred Stock are then
entitled to designate pursuant to that provision or the failure of the
Corporation to nominate for director the persons designated by the
holders of the Series B Cumulative Convertible Preferred Stock in
accordance with Section 13(a) below; or
(4) solely for purposes of the
right to elect additional directors pursuant to Section 9(b) and not
for purposes of any other Section, the failure of the Corporation to
authorize, declare, and pay dividends payable in Series B Cumulative
Convertible Preferred Stock when due in accordance with Section 3.
- 11 -
24
(c) The date fixed for each such repurchase shall
be (x) the anniversary of the Original Issue Date immediately
succeeding the notice given pursuant to Section 7(a), or (y) the 121st
day following the occurrence of the Special Default giving rise to a
repurchase pursuant to Section 7(b). The place of payment shall be at
an office or agency in Boston, Massachusetts fixed therefor by the
Corporation or, if not fixed, at the principal executive office of the
Corporation.
(d) The Corporation shall, within 20 days of the
occurrence of a Special Default, give a written notice thereof by
registered or certified mail, postage prepaid, return receipt
requested, to the holders of record of shares of the Series B
Cumulative Convertible Preferred Stock, addressed to such holders at
their last addresses as shown upon the stock transfer books of the
Corporation. Each such notice shall specify the Special Default which
has occurred and the date of such occurrence, the place or places of
payment, the then effective conversion price pursuant to Section 8,
the then effective repurchase price and the date the right of such
holder to require such repurchase shall terminate. Any notice that is
mailed as herein provided shall be conclusively presumed to have been
duly given, whether or not the holder of shares of Series B Cumulative
Convertible Preferred Stock receives such notice; and failure to give
such notice by mail, or any defect in such notice, to the holders of
any shares shall not affect the validity of the proceedings for the
repurchase of any other shares of Series B Cumulative Convertible
Preferred Stock.
(e) (i) On the date fixed for any such
repurchase, each holder of shares of Series B Cumulative Convertible
Preferred Stock who elects to have shares of Series B Cumulative
Convertible Preferred Stock held by it purchased shall surrender the
certificate representing such shares to the Corporation at the place
designated in such notice together with an election to have such
purchase made and shall thereupon be entitled to receive payment
therefor provided in this Section 7. If less than all the shares
represented by any such surrendered certificate are repurchased, a new
certificate shall be issued representing the unpurchased shares.
Dividends with respect to the shares of Series B Cumulative
Convertible Preferred Stock so purchased shall cease to accrue after
the date so purchased, such shares shall no longer be deemed
outstanding after such date and the holders thereof shall cease to be
stockholders of the Corporation and all rights whatsoever with respect
to the shares so purchased shall terminate.
- 12 -
25
(ii) If the funds legally available for
such purchase are not sufficient to purchase all the shares of Series
B Cumulative Convertible Preferred Stock tendered to the Corporation
for purchase, the Corporation shall purchase the greatest number of
whole shares for which such funds are so available on a pro rata basis
among all tendering holders based on the ratio of the number of shares
tendered by each of them to the aggregate amount of all shares so
tendered, and the certificates representing the unpurchased shares
shall be deemed not to be surrendered for repurchase, such unpurchased
shares shall remain outstanding and the rights of the holders of
shares of Series B Cumulative Convertible Preferred Stock thereafter
shall continue to be those of a holder of shares of the Series B
Cumulative Convertible Preferred Stock; provided, however, the
Corporation shall thereafter be required to repurchase all such
remaining shares at the first date it has sufficient funds legally
available for such purpose at the price it would have paid at the date
such shares were actually tendered and the Corporation shall give
notice as aforesaid to each holder whose shares were not repurchased
for such reason and such holder shall thereafter have the right to
elect to have such shares repurchased, such election to be made within
30 days of receipt of such notice. For purposes of this Section, the
Corporation shall be deemed not to have sufficient funds legally
available for any such purchase if the Board of Directors reasonably
determines that immediately after such repurchase the Corporation
would be insolvent.
(iii) For so long as there remain shares
of Series B Cumulative Convertible Preferred Stock that have been
surrendered for repurchase in accordance with this Section 7 that have
not been so repurchased by the Corporation: (1) the number of members
of the Board of Directors shall be increased by such number as is
necessary to allow the election of the directors specified in clause
(2) of this Section, and (2) the holders of the Series B Cumulative
Convertible Preferred Stock, voting separately as a class, shall have
the right to elect an additional number of directors to the Board of
Directors such that the Designated Directors (defined below in Section
13) who are serving on the Board of Directors, plus the directors
elected by such holders voting as a class under this clause,
constitute a majority of Board. The right of the holders of the
Series B Cumulative Convertible Preferred Stock to vote for such
additional directors shall terminate when shares of the Series B
Cumulative Convertible Preferred Stock properly tendered for
repurchase pursuant to this Section 7 have been repurchased. The term
of office of all directors so elected shall terminate immediately upon
the termination of the right of the holders of the Series B Cumulative
Convertible Preferred Stock to vote for such additional directors, and
the number of directors of the Board of Directors shall immediately
thereafter be reduced.
- 13 -
26
(iv) The foregoing right of the holders
of the Series B Cumulative Convertible Preferred Stock with respect to
the election of additional directors may be exercised at each annual
meeting of stockholders or at any special meeting of stockholders held
for such purpose. If the right to elect additional directors shall
have accrued to the holders of the Series B Cumulative Convertible
Preferred Stock more than thirty (30) days preceding the date
established for the next annual meeting of stockholders, the President
of the Corporation shall, within five (5) days after the delivery to
the Corporation at its principal office of a written request for a
special meeting signed by the holders of at least 10% of all
outstanding shares of the Series B Cumulative Convertible Preferred
Stock, call a special meeting of the holders of the Series B
Cumulative Convertible Preferred Stock to be held as promptly as
practicable after the delivery of such request for the purpose of
electing such additional directors.
(v) The holders of the Series B
Cumulative Convertible Preferred Stock voting as a class shall have
the right to remove with or without cause at any time and replace any
directors such holders shall have elected pursuant to this Section 7
and the holders of each other class of stock of the Corporation shall
not have the right to remove any such directors.
8. Conversion.
(a) Right of Conversion. Each share of Series B
Cumulative Convertible Preferred Stock, whether issued originally or
in-kind as a dividend payment, shall be convertible at the option of
the holder thereof, at any time (provided, however, that where the
Corporation has elected to redeem such stock, the option of the holder
described in this section must be exercised prior to the close of
business on the business day prior to the date fixed for redemption of
such share as herein provided), into fully paid and nonassessable
shares of Common Stock and such other securities and property as
hereinafter provided, at the rate of that number of shares of Common
Stock for each full share of Series B Cumulative Convertible Preferred
Stock that is equal to the Liquidation Preference plus an amount in
cash equal to the accrued and unpaid dividends thereon, whether or not
authorized or declared, divided by the conversion price applicable per
share of Common Stock. For purposes of this Section 8(a), the
"conversion price" applicable per share of Common Stock shall
initially be equal to Nine Dollars and Sixty-Eight Cents ($9.68), and
shall be adjusted from time to time after the Original Issue Date in
accordance with the provisions of this Section 8.
- 14 -
27
(b) Conversion Procedures.
(i) Any holder of shares of Series B
Cumulative Convertible Preferred Stock desiring to convert such shares
into Common Stock shall surrender the certificate or certificates
representing such shares of Series B Cumulative Convertible Preferred
Stock at the office of the transfer agent for the Series B Cumulative
Convertible Preferred Stock, which certificate or certificates, if the
Corporation shall so require, shall be duly endorsed to the
Corporation or in blank, or accompanied by proper instruments of
transfer to the Corporation or in blank, accompanied by irrevocable
written notice to the Corporation that the holder elects so to convert
such shares of Series B Cumulative Convertible Preferred Stock and
specifying the name or names (with address or addresses) in which a
certificate or certificates evidencing shares of Common Stock are to
be issued.
(ii) Subject to Section 8(k) hereof, no
payments or adjustments in respect of dividends on shares of Series B
Cumulative Convertible Preferred Stock surrendered for conversion or
on account of any dividend on the Common Stock issued upon conversion
shall be made upon the conversion of any shares of Series B Cumulative
Convertible Preferred Stock.
(iii) The Corporation shall, as soon as
practicable after such deposit of certificates representing shares of
Series B Cumulative Convertible Preferred Stock accompanied by the
written notice and compliance with any other conditions herein
contained, deliver at such office of the transfer agent to the person
for whose account such shares of Series B Cumulative Convertible
Preferred Stock were so surrendered or to the nominee or nominees of
such person certificates representing the number of full shares of
Common Stock to which such person shall be entitled as aforesaid,
together with a cash adjustment in respect of any fraction of a share
of Common Stock as hereinafter provided. Subject to the following
provisions of this paragraph, such conversion shall be deemed to have
been made as of the date of such surrender of the shares of Series B
Cumulative Convertible Preferred Stock to be converted, and the person
or persons entitled to receive the Common Stock deliverable upon
conversion of such Series B Cumulative Convertible Preferred Stock
shall be treated for all purposes as the record holder or holders of
such Common Stock on such date.
(c) Adjustment of Conversion Price. The
conversion price at which a share of Series B Cumulative Convertible
Preferred Stock is convertible into Common Stock shall be subject to
adjustment from time to time as follows:
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28
(i) (1) In case the Corporation
shall pay or make a dividend or other distribution on its Common Stock
exclusively in Common Stock or shall pay or make a dividend or other
distribution on any other class of stock of the Corporation which
dividend or distribution includes Common Stock or shall exchange
outstanding Rights (as defined in Section 8(j) hereof) for shares of
Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
or to exchange such Rights shall be reduced by multiplying such
conversion price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares
constituting such dividend or other distribution or exchange, such
reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination.
(2) In case the Corporation shall
issue or otherwise sell or distribute shares of Common Stock for a
consideration per share in cash or property less than the most recent
Closing Price prior to the time of such issuance (and, if shares are
issued, sold, or distributed pursuant to the exercise or conversion of
options, warrants, convertible securities, or other rights, the
exercise or conversion price thereof when such options, warrants,
convertible securities, or rights were granted or issued was less than
the Closing Price (defined below in Section 8(h) at the time of
issuance of such options, warrants, convertible securities, or other
rights), the conversion price then in effect shall be reduced by
multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding immediately
prior to such issuance, sale or distribution plus the number of shares
of Common Stock which the aggregate consideration received by the
Corporation for such issuance, sale or distribution (such
consideration, if other than cash, as determined by the Board of
Directors, whose determination shall be conclusive and described in a
vote of the Board of Directors) would purchase at the current market
price per share and the denominator shall be the number of shares of
Common Stock outstanding immediately after giving effecting to such
issuance, sale or distribution.
(ii) In case the Corporation shall pay or
make a dividend or other distribution on its Common Stock consisting
exclusively of, or shall otherwise issue to all or substantially all
holders of its Common Stock, rights or warrants entitling the holders
thereof to subscribe for or purchase shares of
- 16 -
29
Common Stock at a price per share less than the then current market
price per share (determined as provided in subparagraph (vii) of this
Section 8(c)) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of business on
the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at
such current market price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. In case any rights
or warrants referred to in this subparagraph (ii) in respect of which
an adjustment shall have been made shall expire unexercised, the
conversion price shall be readjusted at the time of such expiration to
the conversion price that would have been in effect if no adjustment
had been made on account of the distribution or issuance of such
expired rights or warrants. For the purposes of this Section
8(c)(ii), if both a Distribution Date and a Section 11(a)(ii) Event
(as such terms are defined in the Rights Agreement by and between the
Corporation and the First National Bank at Boston, dated as of
September 23, 1988, as amended (the "Rights Agreement")) shall have
occurred, then the later to occur of such events shall be deemed to
constitute an issuance of rights to purchase shares of Common Stock.
(iii) In case outstanding shares of Common
Stock shall be subdivided into a greater number of shares of Common
Stock, the conversion price in effect at the opening of business on
the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the conversion price in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to become
effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes
effective.
(iv) (1) In case the Corporation
shall, by dividend or otherwise, make a Section 8(c)(iv) Distribution
(defined below in Section 8(h)) to
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all or substantially all holders of its Common Stock, the conversion
price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
following the close of business on the Determination Date (as defined
in Section 8(h)) by a fraction of which the numerator shall be the
current market price per share (determined as provided in subparagraph
(vii) of this Section 8(c)) of the Common Stock on the Determination
Date less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), on the date of such
effectiveness, of the portion of the Section 8(c)(iv) Distribution so
distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common
Stock, such reduction to become effective immediately prior to the
opening of business on the day following the Determination Date. If
the Board of Directors so determines as aforesaid the fair market
value of any distribution for purposes of this subparagraph (iv) by
reference to the actual or when-issued trading market for any
Securities comprising such distribution, it must in doing so consider
the prices in such market over the same period used in computing the
current market price per share of Common Stock pursuant to
subparagraph (vii) of this Section 8(c).
(2) Notwithstanding the foregoing,
if the Corporation elects to reserve, for distribution to the holders
of the Series B Cumulative Convertible Preferred Stock upon the
conversion of the shares of Series B Cumulative Convertible Preferred
Stock, the evidences of the Corporation's indebtedness, shares of any
class of stock, or assets that would have been distributed to the
holders of the Series B Cumulative Convertible Preferred Stock if they
had converted their shares into shares of Common Stock so that any
such holder converting shares of Series B Cumulative Convertible
Preferred Stock will receive upon such conversion, in addition to the
shares of the Common Stock to which such holder is entitled, the
amount and kind of such evidences of the Corporation's indebtedness,
shares of any class of stock, or assets which such holder would have
received if such holder had, immediately prior to the Determination
Date for such distribution of securities, converted its shares of
Series B Cumulative Convertible Preferred Stock into Common Stock, the
fair market value of the Securities shall, for purposes of this
subparagraph (iv), be deemed to be zero.
(v) Subject to the last sentence of this
subparagraph (v), in case the Corporation shall, by dividend or
otherwise, at any time distribute to all holders of its Common Stock
cash (excluding any cash representing an amount per share of capital
stock of the Corporation to the extent such cash does not
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31
constitute an Extraordinary Equity Payment), the conversion price
shall be reduced so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the
effectiveness of the conversion price reduction contemplated by this
subparagraph (v) by a fraction of which the numerator shall be the
current market price per share (determined as provided in subparagraph
(vii) of this Section 8(c)) of the Common Stock on the Determination
Date less the amount of cash so distributed and not excluded as above
provided applicable to one share of Common Stock and the denominator
shall be such current market price per share of the Common Stock, such
reduction to become effective immediately prior to the opening of
business on the day following the Determination Date. Notwithstanding
the foregoing, if the Corporation elects to reserve the cash to be
distributed for distribution to the holders of the Series B Cumulative
Convertible Preferred Stock upon the conversion of the shares of
Series B Cumulative Convertible Preferred Stock so that any such
holder converting shares of Series B Cumulative Convertible Preferred
Stock will receive upon such conversion, in addition to the shares of
the Common Stock to which such holder is entitled, the amount of cash
which such holder would have received if such holder had, immediately
prior to the Determination Date for such distribution of cash,
converted its shares of Series B Cumulative Convertible Preferred
Stock into Common Stock, then the conversion price shall not be so
reduced.
(vi) In case a tender or exchange offer
made by the Corporation or any subsidiary of the Corporation for all
or any portion of the Corporation's Common Stock shall expire and such
tender or exchange offer shall involve the payment by the Corporation
or such subsidiary of consideration per share of Common Stock having a
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange offer (as
it shall have been amended) that exceeds the current market price per
share (determined as provided in subparagraph (vii) of this Section
8(c)) of the Common Stock on the Trading Day next succeeding the
Expiration Time, the conversion price shall be reduced so that the
same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the Expiration Time by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the current market price per share
(determined as provided in subparagraph (vii) of this Section 8(c)) of
the Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market value
(determined as
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aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the current market price per share (determined as provided in
subparagraph (vii) of this Section 8(c)) of the Common Stock on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time.
(vii) For purposes of any computation
under this section, the current market price per share of Common Stock
on any date shall be deemed to be the volume-weighted average trading
price of the Common Stock for the five-day period before the earlier
of the day in question and the "ex" date with respect to any issuance
or distribution requiring such computation; provided, however, that
for purposes of clause (3) of this paragraph, the current market price
per share shall be deemed to be the volume-weighted average trading
price of the Common Stock for the five-day period after the "ex date."
For purposes of this subparagraph (vii), the term "ex" date, (1) when
used with respect to any issuance or distribution, means the first
date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution,
(2) when used with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (3) when used
with respect to any tender or exchange offer, means the first date on
which the Common Stock trades regular way on such exchange or in such
market after the Expiration Time of such offer.
(viii) The Corporation may make such
reductions in the conversion price, in addition to those required by
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of this Section
8(c), as it considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as such for income tax
purposes.
(ix) No adjustment in the conversion
price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the conversion price; provided,
however, that any adjustments which by
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33
reason of this subparagraph (ix) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
(x) Notwithstanding any other provision
of this Section 8 and without implication that the contrary would
otherwise be true, no issuance, dividend or distribution requiring
adjustment of the conversion price pursuant to Section 8(c) hereof
shall be deemed to have occurred in the event that, upon, following or
in connection with the redemption or expiration of the Rights or the
termination of the Rights Agreement or otherwise, the Corporation
enters into a new agreement that is comparable in purpose and effect
to the Rights Agreement (as determined by the Board of Directors,
whose determination shall be conclusive) and distributes rights to
purchase Preferred Stock (or other similar stock purchase rights under
such agreement that are attached to the Common Stock) to the holders
of Common Stock.
(xi) Whenever the conversion price is
adjusted as herein provided:
(1) the Corporation shall compute
the adjusted conversion price and shall prepare a certificate signed
by the Treasurer of the Corporation setting forth the adjusted
conversion price and showing in reasonable detail the acts upon which
such adjustment is based, and such certificate shall forthwith be
filed with the transfer agent for the Series B Cumulative Convertible
Preferred Stock; and
(2) a notice stating the conversion
price has been adjusted and setting forth the adjusted conversion
price shall forthwith be required, and as soon as practicable after it
is required, such notice shall be mailed by the Corporation to all
record holders of shares of Series B Cumulative Convertible Preferred
Stock at their last addresses as they shall appear upon the stock
transfer books of the Corporation.
(d) No Fractional Shares. No fractional shares
or scrip representing fractional shares of Common Stock shall be
issued upon conversion of Series B Cumulative Convertible Preferred
Stock. If more than one certificate representing shares of Series B
Cumulative Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of full shares
issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of Series B Cumulative Convertible
Preferred Stock so surrendered. Instead of any fractional share of
Common Stock that would otherwise be issuable upon conversion of any
shares of Series B Cumulative
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Convertible Preferred Stock, the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal
to the same fraction of the market price per share of Common Stock (as
determined by the Board of Directors or in any manner prescribed by
the Board of Directors, which, so long as the Common Stock is listed
on the Primary Exchange, shall be the reported last sale price regular
way on the Primary Exchange) at the close of business on the day of
conversion.
(e) Reclassification, Consolidation, Merger, or
Sale of Assets. If any capital reorganization or reclassification of
the capital stock of the Corporation, or consolidation or merger of
the Corporation with another corporation, or the sale of all or
substantially all of its assets to another corporation shall be
effected in such a way that holders of Common Stock shall be entitled
to receive stock, securities, cash or other property with respect to
or in exchange for Common Stock, then, as a condition of such
reorganization, reclassification, consolidation, merger or sale,
lawful and adequate provision shall be made whereby the holders of the
Series B Cumulative Convertible Preferred Stock shall have the right
to acquire and receive upon conversion of the Series B Cumulative
Convertible Preferred Stock, which right shall be pari passu with the
rights of holders of Parity Dividend Stock and senior to the rights of
the holders of Junior Dividend Stock and Junior Liquidation Stock (but
after and subject to the rights of holders of Senior Dividend Stock
and Senior Liquidation Stock, if any), such shares of stock,
securities, cash or other property issuable or payable (as part of the
reorganization, reclassification, consolidation, merger or sale) with
respect to or in exchange for such number of outstanding shares of
Common Stock as would have been received upon conversion of the Series
B Cumulative Convertible Preferred Stock at the conversion price then
in effect, whether or not such stock is then convertible. The
Corporation will not effect any such consolidation, merger or sale,
unless prior to the consummation thereof the successor corporation (if
other than the Corporation) resulting from such consolidation or
merger or the corporation purchasing such assets shall assume by
written instrument in reasonable and customary form mailed or
delivered to the holders of the Series B Cumulative Convertible
Preferred Stock at the last address of each such holder appearing on
the books of the Corporation, the obligation to deliver to each such
holder such shares of stock, securities or assets as, in accordance
with the foregoing provisions, such holder may be entitled to
purchase.
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35
(f) Reservation of Shares; Transfer Taxes; Etc.
(i) The Corporation shall at all times
reserve and keep available, out of its authorized and unissued stock,
solely for the purpose of effecting the conversion of the Series B
Cumulative Convertible Preferred Stock, such number of shares of its
Common Stock or Common Stock free of preemptive rights as shall from
time to time be sufficient to effect the conversion of all shares of
Series B Cumulative Convertible Preferred Stock from time to time
outstanding. The Corporation shall from time to time, in accordance
with the laws of the State of Massachusetts, increase the number of
authorized shares of Common Stock if at any time the number of shares
of authorized and unissued Common Stock shall not be sufficient to
permit the conversion of all the then outstanding shares of Series B
Cumulative Convertible Preferred Stock.
(ii) If any shares of Common Stock
required to be reserved for purposes of conversion of the Series B
Cumulative Convertible Preferred Stock hereunder require registration
with or approval of any governmental authority under any Federal or
State law before such shares may be issued upon conversion, the
Corporation will in good faith and as expeditiously as possible
endeavor to cause such shares to be duly registered or approved, as
the case may be. If the Common Stock is listed on the American Stock
Exchange or any other national securities exchange or national
quotation service, the Corporation will list and keep listed on such
exchange, upon official notice of issuance, all shares of Common Stock
issuable upon conversion of the shares of Series B Cumulative
Convertible Preferred Stock.
(iii) The Corporation shall pay any and
all issue or other taxes that may be payable in respect of any issue
or delivery of shares of Common Stock on conversion of the Series B
Cumulative Convertible Preferred Stock. The Corporation shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue or delivery of Common Stock (or
other securities or assets) in a name other than that in which the
shares of Series B Cumulative Convertible Preferred Stock so converted
were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Corporation
the amount of such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
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36
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall declare or
authorize a redemption or repurchase of in excess of five percent of
the then outstanding shares of Common Stock; or
(ii) the Corporation shall authorize the
granting to all holders of Common Stock of rights or warrants to
subscribe for or purchase any shares of stock of any class or of any
other rights or warrants (other than pursuant to the Rights Agreement
or, following the redemption or expiration of the Rights or the
termination of the Rights Agreement, any new shareholder rights
agreement that is comparable in purpose and effect to the Rights
Agreement); or
(iii) of any reclassification of Common
Stock (other than a subdivision or combination of the outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or
merger to which the Corporation is a party and for which approval of
any stockholders of the Corporation shall be required, or of the sale
or transfer of all or substantially all of the assets of the
Corporation or of any compulsory share exchange whereby the Common
Stock is converted into other securities, cash or other property; or
(iv) of the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent
for the Series B Cumulative Convertible Preferred Stock, and shall
cause to be mailed to the holders of record of the Series B Cumulative
Convertible Preferred Stock, at their last addresses as they shall
appear upon the stock transfer books of the Corporation, at least
fifteen days prior to the applicable record date hereinafter
specified, a notice stating, as the case may be, (x) the record date
(if any) for the purpose of such dividend, distribution, redemption,
repurchase or granting of rights or warrants or, if no record date is
to be set, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution, redemption, rights or
warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, share
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37
exchange, dissolution, liquidation or winding up is expected to become
effective, and the date, if any, as of which it is expected that
holders of shares of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but
no failure to mail such notice or any defect therein or in the mailing
thereof shall affect the validity of the corporate action required to
be specified in such notice).
(h) Definitions. The following definitions shall
apply to terms used in this Section 8:
(i) "Closing Price" on any day shall
mean the closing sale price regular way on such day or, in case no
such sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in each case on the Primary
Exchange, or, if not quoted or listed or admitted to trading on any
national securities exchange or quotation system, the average of the
closing bid and asked prices of the Common Stock on the
over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service, or if not so available in such manner, as
furnished by any American Stock Exchange member firm selected from
time to time by the Board of Directors of the Corporation for that
purpose.
(ii) "Determination Date" shall mean,
with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive
any cash, securities or other property or assets or in which the
Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive
such cash, securities or other property or assets (whether such date
is fixed by the Board of Directors or by statute, contract or
otherwise).
(iii) "Extraordinary Equity Payment" shall
mean:
(1) the declaration or payment on
or after the Original Issue Date by the Corporation, or any of its
subsidiaries of any dividend or distribution on any class or series of
its stock other than:
(A) any dividend or
distribution from one subsidiary of the Corporation to a
wholly-owned subsidiary of the Corporation or from a subsidiary of the
Corporation to the Corporation; provided that all of such dividend
paid or distribution made, net of applicable withholding taxes, is
received by the Corporation, or such recipient subsidiary;
(B) any regularly scheduled
(whether or not overdue) periodic cash dividend on the $21.25
Preferred Stock and Series B
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38
Cumulative Convertible Preferred Stock in accordance with the terms
thereof as in effect on the Original Issue Date;
(C) any cash dividends on
the Common Stock or other capital stock after September 1, 2001 that do
not exceed in aggregate more than twenty-five percent (25%) of the
Corporation's consolidated net income available for distribution to
common shareholders (after preferred dividends); provided, however,
that the Corporation shall have elected, for the preceding four fiscal
quarters, to pay cash dividends on the Series B Cumulative Convertible
Preferred Stock and shall have paid in full such dividends in cash
when due;
(2) any repurchases, redemptions,
retirements or other acquisitions directly or indirectly by the
Corporation or any of its subsidiaries on or after the Original Issue
Date of any stock of the Corporation or any of its subsidiaries (other
than a wholly-owned subsidiary) (other than redemptions or repurchases
of the Series B Cumulative Convertible Preferred Stock in accordance
with Sections 6 and 7).
(iv) "Fundamental Change" shall mean the
occurrence of any transaction or event in connection with a plan or
agreement to which, in either case, the Corporation is a party
pursuant to which all or substantially all of the shares of Common
Stock shall be exchanged for, converted into, acquired for or
constitute solely the right to receive cash, securities, property or
other assets (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise); provided, however, in the case of a
plan involving more than one such transaction or event, for purposes
of adjustment of the conversion price, such Fundamental Change shall
be deemed to have occurred when substantially all of the shares of
Common Stock of the Corporation shall be exchanged for, converted into
or acquired for or constitute solely the right to receive cash,
securities, property or other assets, but the adjustment shall be
based upon the consideration which the holders of Common Stock
received in such transaction or event as a result of which more than
50% of the shares of Common Stock of the Corporation shall have been
exchanged for, converted into, or acquired for or constitute solely
the right to receive cash, securities, property or other assets;
provided, further, that such term does not include (i) any such
transaction or event in which the Corporation and/or any of its
subsidiaries are the issuers of all the cash, securities, property or
other assets exchanged, acquired or otherwise issued in such
transaction or event, or (ii) any such transaction or event in which
the holders of Common Stock receive securities of an issuer other than
the Corporation if, immediately following such
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39
transaction or event, such holders hold a majority of the securities
having the power to vote normally in the election of directors of such
other issuer outstanding immediately following such transaction or
other event.
(v) "Section 8(c)(iv) Distribution"
shall mean evidences of the Corporation's indebtedness, shares of any
class of stock, or assets, including securities, but excluding any
rights or warrants referred to in subparagraph (ii) of Section 8(c),
excluding any dividend or distribution paid in cash, and excluding any
dividend or distribution referred to in subparagraph (i) of Section
8(c).
(vi) "Trading Day" shall mean a day on
which the national securities exchange or the NASDAQ National Market
System used to determine the Closing Price is open for the transaction
of business or the reporting of trades.
(i) Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares
of Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Corporation and the
investment of additional optional amounts in shares of Common Stock
under any such plan, and the issuance of any shares of Common Stock or
options or rights to purchase such shares pursuant to any employee
benefit plan or program of the Corporation or pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security
issued or outstanding on the Original Issue Date (except as expressly
provided in Section 8(c)(i) or 8(c)(ii) with respect to certain events
under the Rights Agreement), and any issuance of Rights (defined
below) or other rights referred to in Section 8(c)(x), shall not be
deemed to constitute an issuance of Common Stock, options, warrants,
rights, or exercisable, exchangeable or convertible securities by the
Corporation or any of its subsidiaries to which any of the adjustment
provisions described above in this Section 8 applies. There shall
also be no adjustment of the conversion price in case of the issuance
of any stock (or options, warrants, rights, or securities convertible
into or exchangeable or exercisable for stock) of the Corporation
except as specifically described in this Section 8. If any action
would require adjustment of the conversion price pursuant to more
than one of the provisions described above, only one adjustment shall
be made and such adjustment shall be the amount of adjustment which
has the highest absolute value to the holders of Series B Cumulative
Convertible Preferred Stock.
(j) Preferred Share Purchase Rights. So long as
Preferred Share Purchase Rights, of the kind authorized and declared
on September 23, 1988 and distributed by the Corporation in September
1988 as the same have been
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40
and may hereafter be amended ("Rights"), are attached to the
outstanding shares of Common Stock of the Corporation, each share of
Common Stock issued upon conversion of the shares of Series B
Cumulative Convertible Preferred Stock prior to the earliest of any
Distribution Date (as defined in the Rights Agreement), the date of
redemption of the Rights or the date of expiration of the Rights shall
be issued with Rights in an amount equal to the amount of Rights then
attached to each such outstanding share of Common Stock.
(k) Certain Additional Rights. In case the
Corporation shall, by dividend or otherwise, authorize, declare or
make a distribution on its Common Stock referred to in Section
8(c)(iv) or Section 8(c)(v), the holder of each share of Series B
Cumulative Convertible Preferred Stock, upon the conversion thereof
subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution
and prior to the effectiveness of the conversion price adjustment in
respect of such distribution pursuant to Section 8(c)(iv) or Section
8(c)(v), shall be entitled to receive for each share of Common Stock
into which such share of Series B Cumulative Convertible Preferred
Stock is converted, the portion of the evidences of indebtedness,
shares of stock, cash and assets so distributed applicable to one
share of Common Stock; provided, however, that, at the election of the
Corporation (whose election shall be evidenced by a vote of the Board
of Directors) with respect to all holders so converting, the
Corporation may, in lieu of distributing to such holder any portion of
such distribution not consisting of cash or securities of the
Corporation, pay such holder an amount in cash equal to the fair
market value thereof (as determined by the Board of Directors, whose
determination shall be conclusive and described in a vote of the Board
of Directors). If any conversion of a share of Series B Cumulative
Convertible Preferred Stock described in the immediately preceding
sentence occurs prior to the payment date for a distribution to
holders of Common Stock which the holder of the share of Series B
Cumulative Convertible Preferred Stock so converted is entitled to
receive in accordance with the immediately preceding sentence, the
Corporation may elect (such election to be evidenced by a resolution
of the Board of Directors) to distribute to such holder a due xxxx for
the evidences of indebtedness, shares of stock, cash or assets to
which such holder is so entitled; provided that such due xxxx (i)
meets any applicable requirements of the principal national securities
exchange or other market on which the Common Stock is then traded and
(ii) requires payment or delivery of such evidences of indebtedness,
shares of stock, cash or assets no later than the date of payment or
delivery thereof to holders of Common Stock receiving such
distribution. The rights provided in this Section 8(k) with respect to
distribution referred to in Section 8(c)(iv) or
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41
Section 8(c)(v) shall be in lieu of, and not in addition to, the
rights accorded to holders of Series B Cumulative Convertible
Preferred Stock in those Sections.
(l) Other. Notwithstanding any other provision
in this Section 8 to the contrary, if the Corporation shall, by
dividend or otherwise, authorize, declare or make a distribution on
its Common Stock referred to in Section 8(c)(iv) and such distribution
shall include shares of stock of one or more corporations that
immediately prior to such distribution was or would have been a
subsidiary (a "Spin-Off"), the holder of each share of Series B
Cumulative Convertible Preferred Stock shall be entitled to receive
its pro rata share of the securities distributed in the Spin-Off as if
such holder had been the holder of record of the number of shares of
Common Stock into which the Series B Cumulative Convertible Preferred
Stock would be convertible (but for any restrictions on convertibility
contained in this Certificate of Vote) as of the record date for such
distribution. The rights provided in this Section 8(l) with respect
to Spin-Offs shall be in lieu of, and not in addition to, the rights
accorded to holders of Series B Cumulative Convertible Preferred Stock
with respect to Spin-Offs in Section 8(c)(iv).
9. Voting Rights.
(a) General. The holders of shares of Series B
Cumulative Convertible Preferred Stock shall each initially have
Twenty and Sixty-Five Thousand Six Hundred and Forty-Eight
Hundred-Thousandths (20.65648) votes for each share held, which such
shares shall be voted as a class with the holders of the Common Stock
on all matters on which the Common Stock may vote, except as set forth
below. Upon the occurrence of any event that causes an adjustment to
the conversion price pursuant to Section 8(c), the number of votes
possessed by each share of Series B Cumulative Convertible Stock shall
be adjusted such that the number of votes possessed by each such
share immediately after the event giving rise to the adjustment under
Section 8(c) shall be equal to (x) the number of votes possessed by
such share immediately preceding such event, multiplied by (y) the
conversion price immediately preceding such event, divided by (z) the
conversion price immediately after such event. Any shares of Series B
Cumulative Convertible Preferred Stock held by the Corporation or any
entity controlled by the Corporation shall not have voting rights
hereunder and shall not be counted in determining the presence of a
quorum.
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42
(b) Special Default Voting Rights.
(i) Whenever a Special Default exists,
(1) the number of members of the Board of Directors shall be increased
by such number as is necessary to allow the election of the directors
specified in clause (2), and (2) the holders of the Series B
Cumulative Convertible Preferred Stock, voting separately as a class,
shall have the right to elect an additional number of directors to the
Board of Directors such that Designated Directors selected by the
holders of the Series B Cumulative Convertible Preferred Stock, plus
the directors elected by such holders voting as a class under this
clause, constitute a majority of Board. Notwithstanding the foregoing
sentence, the holders of the Series B Cumulative Convertible Preferred
Stock (voting separately as a class) will not have the right to vote
for additional directors pursuant to this Section 9(b) where (x) such
holders have exercised their right to elect additional directors
pursuant to Section 7(e)(iii), and (y) such additional directors
continue to serve as such. The right of the holders of the Series B
Cumulative Convertible Preferred Stock to vote for such additional
directors shall terminate at the earlier to occur of (A) when such
Special Default no longer exists or (ii) two years after the election
of directors pursuant to clause (2) of the first sentence of this
Section. The term of office of all directors so elected shall
terminate immediately upon the termination of the right of the holders
of the Series B Cumulative Convertible Preferred Stock to vote for
such additional directors, and the number of directors of the Board of
Directors shall immediately thereafter be reduced.
(ii) The foregoing right of the holders
of the Series B Cumulative Convertible Preferred Stock with respect to
the election of additional directors may be exercised at each annual
meeting of stockholders or at any special meeting of stockholders held
for such purpose. If the right to elect directors shall have accrued
to the holders of the Series B Cumulative Convertible Preferred Stock
more than thirty (30) days preceding the date established for the next
annual meeting of stockholders, the President of the Corporation
shall, within five (5) days after the delivery to the Corporation at
its principal office of a written request for a special meeting signed
by the holders of at least 10% of all outstanding shares of the Series
B Cumulative Convertible Preferred Stock, call a special meeting of
the holders of the Series B Cumulative Convertible Preferred Stock to
be held as promptly as practicable after the delivery of such request
for the purpose of electing such additional directors.
(iii) The holders of the Series B
Cumulative Convertible Preferred Stock referred to above voting as a
class shall have the right to remove
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with or without cause at any time and replace any directors such
holders shall have elected pursuant to this Section 9(c) and the
holders of each other class of stock of the Corporation shall not have
the right to remove any such directors.
(c) Class Voting Rights. So long as any shares
of the Series B Cumulative Convertible Preferred Stock are
outstanding, the Corporation shall not, directly or indirectly,
without the affirmative vote or consent of the holders of at least 66
2/3% (unless a higher percentage shall then be required by applicable
law or the Corporation's Articles) of all outstanding shares of the
Series B Cumulative Convertible Preferred Stock voting separately as a
class: (i) amend, alter or repeal any provision of the Articles,
Certificate of Vote, or the bylaws of the Corporation, if such
amendment, alteration or repeal would alter the contract rights, as
expressly set forth herein, of the Series B Cumulative Convertible
Preferred Stock or otherwise to adversely affect the rights of the
holders thereof or the holders of the Common Stock, (ii) create,
authorize or issue, or amend the terms of in a manner adversely affect
the rights of the holders the Series B Cumulative Convertible
Preferred Stock, or reclassify shares of any authorized stock of the
Corporation into, or increase the authorized amount of, any Senior
Dividend Stock, Senior Liquidation Stock, Parity Dividend Stock, or
Parity Liquidation Stock or any security convertible into such senior
or Parity Stock, or (iii) approve a Fundamental Change.
10. Outstanding Shares. For purposes of this Certificate
of Vote, all shares of Series B Cumulative Convertible Preferred Stock
issued by the Corporation shall be deemed outstanding except (i) from
the date fixed for redemption pursuant to Section 6 hereof, all shares
of Series B Cumulative Convertible Preferred Stock that have been so
called for redemption under Section 6, to the extent provided
thereunder; (ii) from the date of surrender of certificates
representing shares of Series B Cumulative Convertible Preferred
Stock, all shares of Series B Cumulative Convertible Preferred Stock
converted into Common Stock or repurchased pursuant to Section 7
hereof; and (iii) from the date of registration of transfer, all
shares of Series B Cumulative Convertible Preferred Stock held of
record by the Corporation or any majority-owned subsidiary of the
Corporation.
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11. Transfer Restrictions.
(a) Legends on Series B Cumulative Convertible
Preferred Stock and Common Stock. The certificates representing shares
of Series B Cumulative Convertible Preferred Stock shall, unless
otherwise agreed by the Corporation and the holders of any such
certificates, bear a legend substantially to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES
ISSUABLE UPON CONVERSION OR EXCHANGE HEREOF MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933, OR (ii) AN
APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE
PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE
ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO PERINI CORPORATION TO THE EFFECT THAT SUCH EXEMPTION FROM
REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE. IN
ADDITION, THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
HYPOTHECATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS
FURTHER SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN THE
RESTATED ARTICLES OF ORGANIZATION OF PERINI CORPORATION, IN
THE CERTIFICATE OF VOTE GOVERNING THESE SHARES AND IN A STOCK
PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, AS AMENDED, A
COPY OF EACH OF WHICH IS ON FILE WITH PERINI CORPORATION AND
WILL BE FURNISHED BY THE CORPORATION TO THE STOCKHOLDER ON
REQUEST AND WITHOUT CHARGE."
(b) Transfer Agent Requirements. The transfer
agent (which may be the Corporation) for the Series B Cumulative
Convertible Preferred Stock shall not be required to accept for
registration of transfer any shares of Series B Cumulative Convertible
Preferred Stock bearing the legend contained in paragraph (a) above,
except upon presentation of evidence satisfactory to transfer agent
that the restrictions on transfer of shares of the Series B Cumulative
Convertible Preferred Stock referred to in the legend in paragraph (a)
have been
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45
complied with, all in accordance with such reasonable regulations as
the Corporation may from time to time agree with the transfer agent
for shares of the Series B Cumulative Convertible Preferred Stock.
12. Status of Acquired Shares. Shares of Series B
Cumulative Convertible Preferred Stock redeemed or repurchased by the
Corporation, received upon conversion pursuant to Section 8 or
otherwise acquired by the Corporation will be restored to the status
of authorized but unissued shares of Preferred Stock, without
designation as to class, and may thereafter be issued, but not as
shares of Series B Cumulative Convertible Preferred Stock.
13. Special Covenants.
(a) Nomination of Directors. Effective as of the
Original Issue Date, the Corporation shall elect to the board of
directors three directors designated by the holders of such stock
(such directors, together with their replacements as provided below,
the "Designated Directors"), one of whom shall be a Class I director,
one of whom shall be a Class II director, and one of whom shall be a
Class III director. The holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall designate the classes of
such initial Designated Directors.
(i) In the event that any Designated
Director shall resign, be unable to serve, or be removed (a "Replaced
Designated Director"), the holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall have the right to
designate a replacement to serve as Designated Director until the next
meeting of shareholders at which directors of the same class as the
Replaced Designated Director are elected. Any Designated Director may
be removed from the Board, with or without cause, by the holders of a
majority of the Series B Cumulative Convertible Preferred Stock.
(ii) Except as provided below, at any
time when the term of a Designated Director shall have ended and there
shall be a meeting of shareholders of the Corporation to elect
directors, the Corporation shall nominate for election to the board of
directors, as a successor to any Designated Director serving pursuant
to Section 13(a) or clause (i) of such provision, such person as is
designated to be a Designated Director by the holders of a majority of
the Series B Cumulative Convertible Preferred Stock.
(iii) In the event that the holders of the
Series B Cumulative Convertible Preferred Stock dispose of such stock
or Conversion
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46
Shares (defined below) representing more than sixty-six and two-thirds
percent (66-2/3%) and less than or equal to eighty percent (80%) of
the voting power of the Series B Cumulative Convertible Preferred
Stock issued on the Original Issue Date (plus any payment-in-kind
dividends paid thereon), the number of Designated Directors shall be
reduced to two. If there are then more than two Designated Directors
serving on the board, the holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall remove one such
Designated Director and the holders of such stock shall not have any
right, pursuant to clause (ii) or otherwise, to cause the Corporation
to nominate a designated successor to such removed director.
(iv) In the event that the holders of the
Series B Cumulative Convertible Preferred Stock dispose of such stock
or Conversion Shares representing more than eighty percent (80%) and
less than or equal ninety percent (90%) of the voting power of the
Series B Cumulative Convertible Preferred Stock issued on the Original
Issue Date (plus any payment-in-kind dividends paid thereon), the
number of Designated Directors shall be reduced to one. If there is
then more than one Designated Director serving on the board, the
holders of a majority of the Series B Cumulative Convertible Preferred
Stock shall remove all but one such Designated Director and the
holders of such stock shall not have any right, pursuant to clause
(ii) or otherwise, to cause the Corporation to nominate a designated
successor to such removed director(s).
(v) In the event that the holders of the
Series B Cumulative Convertible Preferred Stock dispose of such stock
or Conversion Shares representing more than ninety percent (90%) of
the voting power of the Series B Cumulative Convertible Preferred
Stock issued on the Original Issue Date (plus any payment-in-kind
dividends paid thereon), there shall be no Designated Directors and
any Designated Directors then serving on the board shall be removed,
and their terms in office shall immediately expire, without any
further action of the holders of such stock.
(vi) The right to nominate directors
pursuant to this provision is in addition to, and not in limitation
of, any other rights and powers of the Series B Cumulative Convertible
Preferred Stock. Directors nominated by the holders of the Series B
Cumulative Convertible Preferred Stock in their capacity as holders of
capital stock of the Corporation and not pursuant to clause (i), (ii),
or (iii) above are not Designated Directors for purposes of this
Certificate of Vote.
(vii) The vote of the holders of Series B
Cumulative Convertible Preferred Stock referred to in this Section may
be exercised at a
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47
meeting of such holders or by written consent of holders with the
requisite percentage of the voting power outstanding.
(viii) Upon the reasonable request of the
Corporation, the holders of the Series B Cumulative Convertible
Preferred Stock shall certify in writing to the Corporation their
holding of Conversion Shares.
(ix) For purposes of this Section:
(1) "voting power" shall mean the
number of votes each such share possesses in the election of
directors; and
(2) "Conversion Shares" shall mean
the shares of Common Stock which are both (A) issuable or issued upon
conversion of the Series B Cumulative Convertible Preferred Stock
pursuant to the terms of this Certificate of Vote of Directors, and
(B) held by a person who either (x) acquired the shares of the Series
B Cumulative Convertible Preferred Stock from which the shares
referred to in clause (A) of this definition were converted and has
held such Common Stock continuously thereafter, or (y) acquired the
shares referred to in clause (A) of this definition from a person
referred to in clause (B)(x) of this definition through a distribution
to the partners by, or dissolution of, a partnership.
(b) Appointment to Executive Committee. At any
time at which the holders of the Series B Cumulative Convertible
Preferred Stock shall have the right to nominate directors for
election to the board pursuant to Section 13(a) hereof, such holders
shall also have the right to designate a like number of persons from
among the members of the board of directors to be members of the
Executive Committee of the board (the "Designated Executive Committee
Members"). In the event that any Designated Executive Committee
Member shall resign, be unable to serve, or be removed, the holders of
a majority of the Series B Cumulative Convertible Preferred Stock
shall have the right to designate a replacement Designated Executive
Committee Member. Any Designated Executive Committee Member may be
removed from the Executive Committee, with or without cause, by the
holders of a majority of the Series B Cumulative Convertible Preferred
Stock.
(c) Approval of Certain Actions. Neither the
Corporation nor the Board shall take any of the following actions
without the approval of a majority of the members of the Executive
Committee of the Board: (A) any borrowing or guarantee by the
Corporation exceeding $15 million, (B) except for
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48
issuance of stock or stock options pursuant to (x) the Corporation's
incentive compensation plans and programs, (y) any warrants
outstanding on the Original Issue Date, or (z) the Rights, any
issuance of stock (whether common or preferred, whether voting or
non-voting, whether junior, pari passu, or senior to the Series B
Cumulative Convertible Preferred Stock) other than Common Stock in an
aggregate amount not exceeding five percent (5%) of the Common Stock
issued and outstanding on the Original Issue Date, (C) any strategic
alliance (other than a construction joint venture) involving a capital
commitment by the Corporation exceeding $5 million, (D) any asset sale
by the Corporation or lease by it as lessor exceeding $5 million
(other than equipment dispositions in the normal course of business);
(E) any redemption or amendment of the Rights or the preferred stock
of the Corporation issuable upon the exercise of such Rights, or any
amendment of the Rights Agreement; and (F) any termination of (other
than a termination upon expiration) or amendment to the management
agreement between the Corporation and Xxxxx-Xxxxxx Corporation;
provided, however, that for purposes of this Section 13(c), approval
of the Executive Committee shall not be required for any decision by
the Board of Directors to redeem the Series B Cumulative Convertible
Preferred Stock pursuant to Section 6(a). Notwithstanding the
foregoing sentence, the board of directors of the Corporation may take
any of the actions specified in the preceding sentence if, after
having consulted with and considered the advice of outside counsel, it
has reasonably determined in good faith that the failure of the board
to take such action would be likely to cause the members of such board
to breach their fiduciary duties under applicable law.
14. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be effective
and valid under applicable law, but if any provision hereof is held to
be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity,
without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should
determine that a provision hereof would be valid or enforceable if a
period of time were extended or shortened or a particular percentage
were increased or
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49
decreased, then such court may make such change as shall be necessary
to render the provision in question effective and valid under
applicable law.
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50
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of _____________ ___,
1996 between PERINI CORPORATION, a Massachusetts corporation (together with its
successors, the "Company"), PB CAPITAL PARTNERS, L.P. ("PB"), UNION LABOR LIFE
INSURANCE COMPANY SEPARATE ACCOUNT P ("Account P" and, together with PB, the
"Initial Stockholders").
WHEREAS, as required by the terms and conditions of the Stock
Purchase Agreement dated as of July 24, 1996, as amended (the "Stock
Agreement"), among the Company, PB, and Xxxxxxx X. Xxxx & Associates, L.P.
("RCBA"), the Company shall issue to PB on the Closing (as defined in the Stock
Agreement), the Series B Preferred Stock (as defined herein) which such stock
is convertible into common stock of the Company, par value $1.00 per share;
WHEREAS, PB -- with the Company's consent -- has assigned its
rights and obligations under the Stock Agreement to acquire a portion of the
Series B Preferred Stock to Account P, and Account P has accepted such
assignment;
WHEREAS, the Company has agreed with the Initial Stockholders,
for their benefit and for the benefit of the other holders of the Series B
Preferred Stock and holders of Conversion Shares (as defined in the Stock
Agreement) to provide certain rights as set forth herein;
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein,
the following terms used in this Agreement shall have the meanings specified
below.
"Account P" has the meaning set forth in the introductory
paragraph hereof.
"Affiliate" means, with respect to any Person, any of (i) a
director or executive officer of such Person, (ii) a spouse, parent, sibling or
descendant of such Person (or a spouse, parent, sibling or descendant of any
director or executive officer of such Person) and (iii) any other Person that,
directly or indirectly, controls, or is controlled by or is under common
control with such Person. For the purpose of this definition, "control"
(including the terms "controlling", "controlled by" and "under common control
with"), as used with respect to any Person, means the possession,
51
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities or by contract or agency or otherwise.
"Business Day" means a day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Common Stock" means the common stock, par value $1.00 per
share, of the Company.
"Company" has the meaning set forth in the introductory
paragraph hereof.
"Conversion Shares" means (i) any shares of Common Stock or
other securities issued or issuable upon the conversion of any shares of Series
B Preferred Stock; (ii) the shares of Common Stock or other securities issued
to PB as a participation fee in connection with PB's purchase of a 100%
participation interest in a $10,000,000 extension of credit to the Company
pursuant to the Bridge Credit Agreement dated as of February 26, 1996 among
Perini Corporation ("Perini"), the Bridge Banks listed in the Bridge Credit
Agreement, and Xxxxxx Guaranty Trust Company of New York, as Agent, as amended
through November __, 1996; or (iii) any securities issued or issuable with
respect to any of such shares or other securities referred to in clause (i) or
(ii) upon the conversion thereof into other securities or by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise;
provided that any of such securities shall cease to be Conversion Shares when
such securities shall have (x) been disposed of pursuant to a Public Sale or
(y) ceased to be outstanding.
"Deferral Period" has the meaning set forth in Section 2.1(d).
"Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Conversion Shares shall have ceased to
be Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, or
any successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
"Filing Date" has the meaning set forth in Section 2.1(a).
"Initial Stockholders" has the meaning set forth in the
introductory paragraph hereof.
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52
"Initial Shelf Registration" has the meaning set forth in
Section 2.1(a).
"Initiating Holders" has the meaning set forth in Section
2.1(a) hereof.
"Managing Underwriters" means the investment banking firm or
firms that shall manage or co-manage an Underwritten Offering.
"Notice Holder" means a holder of Registrable Securities who
has given notice of intention to distribute such holder's Registrable
Securities in accordance with Section 2.1(d).
"PB" has the meaning set forth in the introductory paragraph
hereof.
"Person" means an individual, a corporation, a partnership, a
limited liability partnership, a limited liability company, an association, a
trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Public Sale" means any sale of Common Stock to the public
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(or any successor provision then in effect) adopted under the Securities Act.
"Registrable Securities" means any Conversion Shares until the
date (if any) when (i) such Conversion Shares shall have been transferred or
exchanged and new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company or (ii) if requested
to do so, the Company would be required to deliver certificates for such
Conversion Shares not bearing a legend restricting further transfer, and, in
each case, subsequent disposition of such Conversion Shares shall not require
registration or qualification under the Securities Act or any similar state law
then in force.
"Registration Statement" means any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits, and all material
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53
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"Restricted Securities" means the Series B Preferred Stock,
the Conversion Shares and any securities obtained upon exchange for or upon
conversion or transfer of or as a distribution on Series B Preferred Stock, the
Conversion Shares or any such securities; provided that particular securities
shall cease to be Restricted Securities when such securities shall have (x)
been disposed of pursuant to a Public Sale, (y) been otherwise transferred or
exchanged and new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act or any similar state law then in force or (z) ceased
to be outstanding.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such similar Federal statute.
"Selling Period" has the meaning set forth in Section 2.1(d).
"Series B Preferred Stock" means the Series B Cumulative
Convertible Preferred Stock originally issued to the Initial Stockholders in
accordance with the Stock Agreement, as such stock may be transferred or
otherwise assigned, but only to the extent not theretofore converted, redeemed
or expired in accordance with their respective terms.
"Series B Securityholder" means at any time any Stockholder
or any holder of Conversion Shares.
"Shelf Registration" has the meaning set forth in Section
2.1(a).
"Special Counsel" means any law firm retained from time to
time by the holders of a majority of the Registrable Securities to be sold
pursuant to a Registration
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54
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.
"Stock Agreement" has the meaning set forth in the recitals.
"Subsequent Shelf Registration" has the meaning set forth in
Section 2.1(b).
"Stockholder" means a holder of Series B Preferred Stock.
"Underwritten Offering" means a registration in which
Registrable Securities are sold or to be sold to one or more underwriters for
reoffering to the public.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later
than the date (the "Filing Date") that is sixty (60) days after receipt by the
Company of a written request by the holder or holders of a majority of all
outstanding Conversion Shares and Series B Preferred Stock (such majority
determined, for purposes of this Section 2.1, based on the aggregate number of
Conversion Shares then outstanding plus the number of Conversion Shares into
which any outstanding shares of Series B Preferred Stock are then convertible)
(the "Initiating Holders"), the Company shall prepare and file with the SEC a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration")
registering the resale from time to time by the holders thereof of all of the
Registrable Securities upon and following conversion of the Series B Preferred
Stock (the "Initial Shelf Registration"). The Registration Statement for any
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such holders in the
manner or manners designated by them (including, without limitation, one or
more Underwritten Offerings). The Company shall use its reasonable efforts to
cause the Initial Shelf Registration to become effective under the Securities
Act as promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the end of the
Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below) ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use all
5
55
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty days of such
cessation of effectiveness amend the Shelf Registration in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use all reasonable efforts to
cause the Subsequent Shelf Registration to become effective as promptly as is
practicable after such filing and to keep such Registration Statement
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration, if
required by the Securities Act, or if reasonably requested by any holder of the
Registrable Securities covered by such Registration Statement or by any
Managing Underwriter of such Registrable Securities.
(d) Each Series B Securityholder agrees that if it
wishes to sell any Registrable Securities pursuant to a Shelf Registration and
related Prospectus, it will do so only in accordance with this Section 2.1(d).
Each holder of Registrable Securities agrees to give written notice to the
Company at least six Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration, which notice shall specify
the date on which such holder intends to begin such distribution and any
information with respect to such holder and the intended distribution of
Registrable Securities by such holder required to amend or supplement the
Registration Statement with respect to such intended distribution of
Registrable Securities by such holder; provided that no holder may give such
notice unless such notice, together with notices given by other holders of
Registrable Securities joining in such notice or giving similar notices, covers
at least 30,000 Conversion Shares. As promptly as is practicable after the
date such notice is provided, and in any event within five Business Days after
such date, the Company shall either:
(i) (A) prepare and file with the SEC a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or any other required document, so that such
Registration Statement will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (B) provide each Notice Holder a copy of any documents
filed pursuant to Section 2.1(d)(i)(A); and (C) inform each Notice
Holder that the Company has complied with its obligations in Section
2.1(d)(i)(A) and that the
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56
Registration Statement and related Prospectus may be used for the
purpose of selling all or any of such Registrable Securities (or that,
if the Company has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company
will notify each Notice Holder to that effect, will use all reasonable
efforts to secure the effectiveness of such post-effective amendment
and will immediately so notify each Notice Holder when the amendment
has become effective); each Notice Holder will sell all or any or such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the 45-day period commencing with the date on
which the Company gives notice, pursuant to Section 2.1(d)(i)(C), that
the Registration Statement and Prospectus may be used for such purpose
(such 45-day period is referred to as a "Selling Period"); each Notice
Holder agrees that it will not sell any Restricted Securities pursuant
to such Registration Statement or Prospectus after such Selling Period
without giving a new notice of intention to sell pursuant to Section
2.1(d) hereof and receiving a further notice from the Company pursuant
to Section 2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable
to suspend use of the Prospectus for a period of time due to pending
material corporate developments or similar material events that have
not yet been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company, the Company
shall deliver a certificate in writing, signed by its Chief Executive
Officer, Chief Financial Officer or General Counsel, to the Notice
Holders, the Special Counsel and the Managing Underwriters, if any, to
the effect of the foregoing and, upon receipt of such certificate,
each such Notice Holder's Selling Period will not commence until such
Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 2.1(d)(i)(A) hereof, or until it is
advised in writing by the Company that the Prospectus may be used, and
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use all reasonable efforts to ensure that the use of
the Prospectus may be resumed, and the Selling Period will commence,
upon the earlier of (x) public disclosure of such pending material
corporate development or similar material event or (y) a determination
by the Company that, in the judgment of the Company, public disclosure
of such material corporate development or similar material event would
not be prejudicial to the Company. Notwithstanding the foregoing, the
Company shall not under any circumstances be entitled to exercise its
right under this Section 2.1(d) to defer the commencement of a Selling
Period more than one time in any three-month period or two times in
any twelve-month period, and the period in which a Selling Period is
suspended shall not exceed fifteen days unless the Company shall
deliver to such Notice Holders a second certificate to the effect set
forth above, which shall have the effect of extending the period
during which such Selling Period is deferred by up to an additional
fifteen days, or such shorter period of time as is specified in such
second
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certificate. In no event shall the Company be permitted to extend
the period during which such Selling Period is deferred from and after
the date a Notice Holder provides notice to the Company in accordance
with this Section 2.1(d) of its intention to distribute Registrable
Securities (a "Deferral Period") beyond such 30-day period.
SECTION 2.2. Registration Procedures. In connection with the
Company's registration obligations under Section 2.1 hereof, the Company shall
effect such registrations to permit the sale of the Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof, and use its reasonable efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, that before filing any such Registration Statement or
Prospectus or any amendments or supplements thereto (other than documents that
would be incorporated or deemed to be incorporated therein by reference and
that the Company is required by applicable securities laws or stock exchange
requirements to file) the Company shall furnish to the Initial Stockholders,
the Initiating Holders, the Special Counsel and the Managing Underwriters of
such offering, if any, copies of all such documents proposed to be filed,
which documents will be subject to the review of the Initial Stockholders, the
Initiating Holders, the Special Counsel and such Managing Underwriters, and the
Company shall not file any such Registration Statement or amendment thereto or
any Prospectus or any supplement thereto (other than such documents which, upon
filing, would be incorporated or deemed to be incorporated by reference therein
and that the Company is required by applicable securities laws or stock
exchange requirements to file) to which the holders of a majority of the
Registrable Securities covered by such Registration Statement, the Initial
Stockholders, the Initiating Holders or the Special Counsel shall reasonably
object in writing within two full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2.1; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.
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(c) Notify the selling Series B Securityholders, the
Initial Stockholders, the Initiating Holders, the Special Counsel and the
Managing Underwriters, if any, promptly, and (if requested by any such person)
confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, and of the
contents of such request, (iii) of the issuance by the SEC or any other federal
or state governmental authority of any stop order suspending the effectiveness
of a Registration Statement or the initiation or threatening of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
existence of any fact or happening of any event which makes any statement of a
material fact in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
or which would require the making of any changes in the Registration Statement
or Prospectus in order that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, provided that the Company shall not
be required to disclose such fact or event if such fact or event has not been
publicly disclosed, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use all reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by an Initial Stockholder,
the Initiating Holders, the Special Counsel, the Managing Underwriters, if any,
or the holders of a majority of the Registrable Securities being sold, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment to
a Registration Statement such information as the Initial Stockholders, the
Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or
such holders, in connection with any offering of Registrable Securities, agree
should be included therein as required by applicable law, and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as promptly as is practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, that
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the Company shall not be required to take any actions under this Section 2.2(e)
that are not, in the reasonable opinion of counsel for the Company, in
compliance with or required by applicable law.
(f) Furnish to each selling Series B Securityholder, the
Special Counsel, the Initial Stockholders, and each Managing Underwriter, if
any, without charge, at least one conformed copy of the Registration Statement
or Statements and any amendment thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits (unless requested in writing by such
Series B Securityholder, Special Counsel, Initial Stockholders, or Managing
Underwriter).
(g) Deliver to each selling holder of Registrable
Securities, the Special Counsel, the Initial Stockholders, and each Managing
Underwriter, if any, in connection with any offering of Registrable Securities,
without charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request; and the
Company hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Series B
Securityholders, the Managing Underwriters, if any, and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Series B Securityholder or Managing Underwriter
reasonably requests in writing to the Company; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then
so subject.
(i) Cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities within the United States, except as
may be required solely as a consequence of the nature of a selling holder of
Registrable Securities, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the selling
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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 prepare and file a
post-effective amendment to each Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any other required document (such as a Current Report on Form 8-K) that would
be incorporated by reference into the Registration Statement so that the
Registration Statement shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, use all reasonable efforts to cause it to become effective as
promptly as is practicable.
(k) Enter into such agreements (including, in the event
of an Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including, in the event of an underwritten
offering, those reasonably requested by the Managing Underwriters, if any, or
the holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into, and
if the registration is an underwritten registration, (i) make such
representations and warranties, subject to the Company's ability to do so, to
the holders of such Registrable Securities and the underwriters with respect to
the business of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters, if
any, Special Counsel and the holders of a majority of the Registrable
Securities being sold) addressed to each of the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Special Counsel and
Managing Underwriters; (iii) obtain "comfort"
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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 securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(n) Cooperate with the selling Series B Securityholders
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered
in such names as the selling Series B Securityholders may request.
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(o) Use all reasonable efforts to provide a CUSIP number
for the Registrable Securities not later than the effective date of the
registration.
(p) Cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or quotation
system on which the Company's Common Stock is then listed no later than the
date the Registration Statement is declared effective and, in connection
therewith, to the extent applicable, to make such filings under the Exchange
Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such
filings declared effective thereunder.
(q) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
(r) Provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
Registration Statement.
SECTION 2.3. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by
becoming a transferee of any Registrable Securities, that no holder of
Registrable Securities shall be entitled to sell any of such Registrable
Securities pursuant to a Registration Statement or to receive a Prospectus
relating thereto, unless such holder has furnished the Company with the notice
required pursuant to Section 2.1(d) hereof (including the information required
to accompany such notice) and, promptly after the Company's request, such
other information regarding such holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably request.
The Company may exclude from such registration the Registrable Securities of
any holder who does not furnish such information provided above for so long as
such information is not so furnished. Each holder of Registrable Securities as
to which any Registration Statement is being effected agrees promptly to
furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such holder not
misleading. Any sale of any Registrable Securities by any holder shall
constitute a representation and warranty by such holder that the information
relating to such holder and its plan of distribution is as set forth in the
Prospectus delivered by such holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to such holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to such holder or its plan of distribution
necessary to make the statements in such Prospectus, in light of the
circumstances under which they were made, not misleading.
(b) The Company agrees (x) that if any holder of
Registrable Securities shall send a written notice to the Company of an
intended distribution of
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Registrable Securities under the Shelf Registration pursuant to Section 2.1(d),
the Company shall not to sell, make any short sale of, loan, grant any option
for the purchase of, effect any public sale or distribution of or otherwise
dispose of its equity securities or securities convertible into or exchangeable
or exercisable for any of such securities during the period from first day of
the applicable Selling Period until the date that is 90 days after the date
when such holder shall have made such distribution of Registrable Securities
under the Shelf Registration, as the holder or managing underwriter (in the
case of an Underwritten Offering) shall advise the Company (provided that if
the holder or managing underwriter shall fail to advise the Company of any such
date prior to the end of the applicable Selling Period, such period shall end
on the last day of the applicable Selling Period), except (i) as part of such
registration, (ii) pursuant to registrations on Form S-4 or S-8 or any
successor or similar forms thereto or (iii) as otherwise permitted by the
managing underwriter of such offering (if any), and (y) to use all reasonable
efforts to cause each holder of its equity securities or any securities
convertible into or exchangeable or exercisable for any of such securities, in
each case purchased from the Company at any time after the date of this
Agreement (other than in a public offering) to agree not to sell, make any
short sale of, loan, grant any option for the purchase of, effect any public
sale or distribution of or otherwise dispose of such securities during such
period except as part of such underwritten registration; provided that no
holder of Registrable Securities included in any underwritten registration
shall be required to make any representations or warranties to the Company or
the underwriters other than representations and warranties regarding such
holder and such holder's intended method of distribution.
SECTION 2.4. Registration Expenses. All fees and expenses
incident to the Company's performance of or compliance with this Agreement
shall be borne by the Company whether or not any of the Registration Statements
become effective. Such fees and expenses shall include, without limitation,
(i) all registration and filing fees (including, without limitation, fees and
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of Special Counsel in connection with Blue Sky qualifications of
the Registrable Securities laws of such jurisdictions as the Managing
Underwriters, if any, or holders of a majority of the Registrable Securities
being sold may designate), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depositary Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the Special
Counsel or the holders of a majority of the Registrable Securities included in
any Registration Statement), (iii) messenger, telephone and delivery expenses,
(iv) reasonable fees and disbursements of counsel for the Company and the
Special Counsel in connection with the Registration, (v) fees and disbursements
of all independent certified public accountants referred to in Section
2.2(k)(iii) hereof (including the expenses of any special audit and "comfort"
letters required by or incident to such performance) and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In
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addition, the Company shall pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of
this Section 2.4, each seller of Registrable Securities shall pay all
registration expenses to the extent the Company is prohibited by applicable
Blue Sky laws from paying for or on behalf of such seller of Registrable
Securities.
SECTION 2.5. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each holder of Registrable Securities whose Registrable Securities are covered
by any registration statement, its directors and officers and each other
Person, if any, who controls such holder within the meaning of the Securities
Act, against any losses, claims, damages or liabilities, joint or several, to
which any such indemnified party may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Company will reimburse each such
indemnified party for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such holder specifically for use in the preparation thereof. In
addition, the Company shall indemnify any underwriter of such offering and each
other Person, if any, who controls any such underwriter within the meaning of
the Securities Act in substantially the same manner and to substantially the
same extent as the indemnity herein provided to each Indemnified Party. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
holder.
(b) Each prospective seller of Registrable Securities
hereunder shall indemnify and hold harmless (in the same manner and to the same
extent as set forth in
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subdivision (a) of this Section 2.5) the Company, each director of the
Company, each officer of the Company and each other person, if any, who
controls the Company within the meaning of the Securities Act, with respect to
any statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereof, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller specifically for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Any such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling person and shall
survive the transfer of such securities by such seller. The amount payable by
any prospective seller of Registrable Securities with respect to the
indemnification set forth in this subsection (b) in connection with any
offering of Registrable Securities will not exceed the amount of the gain
realized by such prospective seller pursuant to such offering.
(c) Promptly after receipt by an indemnified party of
notice of the commencement of any action or proceeding involving a claim
referred to in the preceding subdivisions of this Section 2.5, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 2.5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter
into any settlement of any such action which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party.
(d) If the indemnification provided for in the preceding
subdivisions of this Section 2.5 is unavailable to an indemnified party in
respect of any expense, loss,
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claim, damage or liability referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such expense, loss,
claim, damage or liability (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the holder or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company on the one hand and of the holder or
underwriter, as the case may be, on the other in connection with the statements
or omissions which resulted in such expense, loss, damage or liability, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the holder or underwriter, as the case may
be, on the other in connection with the distribution of the Registrable
Securities shall be deemed to be in the same proportion as (i) the product of
the Liquidation Preference (as defined in Exhibit 1.7 of the Stock Agreement)
multiplied by the number of shares of Series B Preferred Stock into which the
Conversion Shares subject to the relevant distribution were converted, bears to
(ii) the gain realized by the selling holder or the underwriting discounts and
commissions received by the underwriter, as the case may be. The relative
fault of the Company on the one hand and of the holder or underwriter, as the
case may be, on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
omission to state a material fact relates to information supplied by the
Company, by the holder or by the underwriter and parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided that the foregoing contribution agreement shall
not inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the proviso contained in the
first sentence of subdivision (a) of this Section 2.5, and in no event shall
the obligation of any indemnifying party to contribute under this subdivision
(d) exceed the amount that such indemnifying party would have been obligated to
pay by way of indemnification if the indemnification provided for under
subdivisions (a) or (b) of this Section 2.5 had been available under the
circumstances.
The Company and the holders of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
subdivision (d) were determined by pro rata allocation (even if the holders and
any underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph and subdivision (c) of this
Section 2.5. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim.
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Notwithstanding the provisions of this subdivision (d), no
holder of Registrable Securities or underwriter shall be required to contribute
any amount in excess of the amount by which (i) in the case of any such holder,
the gain realized by such holder from the sale of Registrable Securities or
(ii) in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 2.6. Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder and will take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements. The Company
further covenants that it will cooperate with any holder of Registrable
Securities and take such further reasonable action as any holder of Registrable
Securities may reasonably request (including, without limitation, making such
reasonable representations as any such holder may reasonably request), all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act.
(b) For so long as any shares of Registrable Securities
are restricted securities within the meaning of Rule 144(a)(3) under the
Securities Act, the Company covenants and agrees that it shall, during any
period in which it is not subject to Section 13 or 15(d) of the Exchange Act,
make available to any holder of Registrable Securities in connection with the
sale of such holder Registrable Securities and any prospective purchaser of
Registrable Securities from such, in each case upon request, the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Securities Act.
(c) The Company shall file the reports required to be
filed by it under the Exchange Act and shall comply with all other eligibility
requirements for use of Form S-3 set forth in the instructions to Form S-3
(other than Registration Requirement A.5).
18
68
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices and other communications
provided for hereunder shall be dated and in writing and shall be deemed to
have been given (i) if given by telecopy, when such telecopy is transmitted to
the telecopy number specified in this Section 3.1 and telephonic confirmation
of receipt thereof is obtained or (ii) if given by mail, prepaid overnight
courier or any other means, when received at the address specified in this
Section 3.1 or when delivery at such address is refused. Such notices shall be
addressed to the appropriate party to the attention of the person who executed
this Agreement at the address or telecopy number set forth under such party's
signature below (or to the attention of such other person or to such other
address or telecopy number as such party shall have furnished to each other
party in accordance with this Section 3.1).
SECTION 3.2. Binding Nature of Agreement. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto or their successors in interest, except as expressly otherwise
provided herein.
SECTION 3.3. Descriptive Headings. The descriptive headings
of the several sections and paragraphs of this Agreement are inserted for
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.4. Specific Performance. Without limiting the
rights of each party hereto to pursue all other legal and equitable rights
available to such party for the other parties' failure to perform their
obligations under this Agreement, the parties hereto acknowledge and agree that
the remedy at law for any failure to perform their obligations hereunder would
be inadequate and that each of them, respectively, shall be entitled to
specific performance, injunctive relief or other equitable remedies in the
event of any such failure.
SECTION 3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL
BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
19
69
LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 3.1. NOTHING IN THIS AGREEMENT
WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
SECTION 3.6. WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 3.7. Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 3.8. Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby, it being intended that all of the rights and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
SECTION 3.9. Entire Agreement. This Agreement is intended by
the parties hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein. This
Agreement supersedes all prior agreement and understandings, written or oral,
between the parties with respect to such subject matter.
SECTION 3.10. Amendment and Waiver. Any provision of this
Agreement may be amended if, but only if, such amendment is in writing and is
signed by the Company and Series B Securityholders owning, or having Series B
Preferred Stock convertible into, at least a majority of shares of Common Stock
either issued or issuable upon the conversion of all outstanding shares of
Series B Preferred Stock, provided that no such amendment may adversely affect
the rights of any Series B Securityholder unless signed by such Series B
Securityholder. Any provision may be waived if, but only if, such waiver is in
writing and is signed by the party or parties waiving such provision and for
whose benefit such provision is intended.
20
70
SECTION 3.11. No Third Party Beneficiaries. Nothing in this
Agreement shall convey any rights upon any person or entity which is not a
party or an assignee of a party to this Agreement.
SECTION 3.12. Effectiveness. This Agreement shall become
effective immediately at such time when (i) the Agent shall have received duly
executed counterparts hereof signed by the Company and each of the Banks (or,
in the case of any party as to which an executed counterpart thereof shall not
have been received, receipt by the Agent in form satisfactory to it of
telegraphic, telex or other written confirmation from such party of execution
of a counterpart hereof by such party) and (ii) the Effective Date under the
Stock Agreement shall occur.
SECTION 3.13. No Inconsistent Agreements. The Company has
not entered into and will not enter into any registration rights agreement or
similar arrangements the performance by the Company of the terms of which would
in any manner conflict with, restrict or be inconsistent with the performance
by the Company of its obligations under this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first above written.
PERINI CORPORATION
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Address for Notices:
--------------------
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile number: (000) 000-0000
21
71
PB CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, L.P.,
its General Partner
By: Xxxxxxx X. Xxxx & Associates,
Inc., its General Partner
By:
------------------------
Name:
Title:
Address for Notices:
--------------------
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx Xxxx
Facsimile Number: 415-434-3130
UNION LABOR LIFE INSURANCE COMPANY
SEPARATE ACCOUNT P
By:
-------------------------------------
Name:
Title:
Address for Notices:
--------------------
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile Number: 000-000-0000
22
72
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of November __, 1996 (this
"Agreement"), is by and among PB CAPITAL PARTNERS, L.P., a Delaware limited
partnership ("PB"), PERINI CORPORATION, a Massachusetts corporation (the
"Corporation"), XXXXX X. XXXXXX ("X. Xxxxxx"), [XXXXXX MEMORIAL FOUNDATION (the
"Foundation"),] XXXX XXXXXX ("X. Xxxxxx"), [XXXXX X. XXXXXX TESTAMENTARY TRUST
(the "Trust"),] Xxxxxx Xxxxx ("Tutor"), and XXXXX-XXXXXX CORPORATION
("Xxxxx-Xxxxxx"). PB, X. Xxxxxx, the Foundation, X. Xxxxxx, the Trust, Tutor,
and Xxxxx-Xxxxxx are referred to collectively herein as the "Stockholders" and
each individually as a "Stockholder."
WHEREAS, each Stockholder is the record and beneficial owner of (1)
that number of shares of Common Stock, par value $1.00 per share ("Common
Stock"), (2) that number of Series B Cumulative Convertible Preferred Stock
("Series B Cumulative Convertible Preferred Stock"), and (3) that number of
Series A Junior Participating Cumulative Preferred Stock ("Series A Junior
Participating Stock") of the Corporation, set forth opposite such Stockholder's
name on Exhibit A attached hereto (the Common Stock, Series B Cumulative
Convertible Preferred Stock, and Series A Junior Participating Stock, together
with any other series or classes of voting stock to be issued by the
Corporation, collectively the "Perini Voting Stock"); and
WHEREAS, pursuant to a "Stock Purchase and Sale Agreement, dated July
24, 1996, by and among PB, Xxxxxxx X. Xxxx & Associates, L.P. ("RCBA"), and the
Corporation (the "Stock Purchase Agreement"), the Corporation has agreed to
sell to PB, and PB has agreed to purchase from the Corporation, 150,150 shares
of Series B Cumulative Convertible Preferred Stock in consideration for the
payment to the Corporation of $30,030,000.00; and
WHEREAS, PB has made the execution of this Voting Agreement a
condition to the purchase of the shares of Series B Cumulative Convertible
Preferred Stock and regards this Voting Agreement as integral to the economic
value of such securities; and
WHEREAS, PB (together with certain of its assigns) are simultaneously
purchasing such securities; and
WHEREAS, in order to induce PB to enter into the Stock Purchase
Agreement, the Stockholders desire to enter into this Agreement, which shall
inure to the benefit of PB;
73
-2-
NOW, THEREFORE, for and in consideration of $10.00 and the premises
and mutual covenants and agreements hereinafter contained, the Stockholders
hereby agree as follows:
1. Voting of Shares for Election of Directors. Each Stockholder
hereby agrees to vote or cause to be voted all Perini Voting Stock owned or
hereafter acquired by him or it, or over which he or it has voting control in
such Stockholder's own right, in favor of the election to the Board of
Directors of the representative designated by PB at the next annual or special
meeting of stockholders at which directors will be elected("Meeting"), which
Director shall serve until his successor is elected and qualified or until his
earlier resignation or removal. At any time during the term of this Agreement,
the Corporation shall cause the nomination for election to the Board of
Directors of the representatives of PB designated in accordance with the
Certificate of Vote, and shall call such Stockholders' meetings as may be
necessary or requested by PB to effect any such election. The representatives
designated by PB shall be reasonably satisfactory to the Corporation.
2. Term. This Agreement shall remain in force and effect until
immediately after the holding of the next Meeting at which the Director
designated pursuant to Section 1 is elected.
3. Changes in Common Stock. In the event that subsequent to the
date of this Agreement any shares or other securities (other than any shares or
securities of another corporation issued to the stockholders of the Corporation
pursuant to a plan of merger) are issued on, or in exchange for, any of the
shares of the Perini Voting Stock held by the Stockholders by reason of any
stock dividend, stock split, consolidation of shares, reclassification, or
consolidation involving the Corporation, such shares or securities shall be
deemed to be Perini Stock for purposes of this Agreement.
4. Representations of Stockholders. Each Stockholder hereby
represents and warrants that (i) he owns and has the right to vote the number
of shares of the Perini Voting Stock set forth opposite his name on Exhibit A
attached hereto, (ii) each of the Stockholders has full power to enter into
this Agreement and has not, prior to the date of this Agreement, executed or
delivered any proxy or entered into any other voting agreement or similar
arrangement that would conflict with the purposes or provisions of this
Agreement, and (iii) he will not take any action inconsistent with the purposes
and provisions of this Agreement.
5. Enforceability; Validity. Irreparable damage would result in
the event that the provisions of this Agreement are not specifically enforced.
Therefore, the rights to, or obligations of, the parties hereto shall be
enforceable in a court of equity by a decree of specific performance and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies, and all other remedies provided for in this
Agreement, shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement or
otherwise.
74
-3-
6. Benefit. Subject to the provisions of Section 9, this
Agreement shall be binding upon, and inure to the benefit of, the respective
parties hereto and their successors, assigns, and transferees.
7. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Massachusetts applicable to agreements made and to be performed entirely within
the Commonwealth of Massachusetts
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Legending. Upon the execution of this Agreement, each
certificate or other instrument for Perini Voting Securities now registered or
to be issued in the name of the Stockholders shall be endorsed by the Secretary
of the Corporation as follows:
"This certificate is subject to that certain Voting Agreement dated as
of November __, 1996 by and among the Corporation and certain of the
holders of its voting stock, a copy of which is on file in the office
of the Corporation and is available upon request of any Stockholder
without charge."
Provided, however, that each of the Trust and the Foundation shall be entitled
to withhold from the legending required by this Section up to ten percent (10%)
of its Perini Voting Stock and that such stock -- if disposed of to an
unaffiliated third party prior to the Meeting -- shall not be subject to this
Voting Agreement.
10. Terms. All terms not otherwise defined in this Agreement
shall have the meaning set forth in the Stock Purchase Agreement.
IN WITNESS WHEREOF, the Stockholders have executed this Agreement as
of the date first above written.
PERINI CORPORATION PB CAPITAL PARTNERS, L.P.
----------------------------------- -------------------------
By:
-----------------------------
Its:
----------------------------
75
-4-
XXXXX X. XXXXXX [PERINI MEMORIAL FOUNDATION
---------------------------------- -----------------------------------
By:
------------------------------
Its: ]
------------------------------
XXXX XXXXXX [XXXXX X. XXXXXX TESTAMENTARY
TRUST
---------------------------------- -----------------------------------
By:
------------------------------
Its: ]
------------------------------
XXXXXX XXXXX XXXXX-XXXXXX CORP.
---------------------------------- -----------------------------------
By:
------------------------------
Its:
------------------------------
76
EXHIBIT A
---------
================================================================================================================================
SERIES B CUMULATIVE SERIES A JUNIOR PARTICIPATING
COMMON STOCK CONVERTIBLE PREFERRED STOCK PREFERRED STOCK
================================================================================================================================
PB Capital
Partners, L.P.
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx Foundation
--------------------------------------------------------------------------------------------------------------------------------
Xxxx Xxxxxx
--------------------------------------------------------------------------------------------------------------------------------
Perini Testamentary Trust
--------------------------------------------------------------------------------------------------------------------------------
Xxxxx-Xxxxxx Corporation
--------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxx
================================================================================================================================
77
November 8, 1996
Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 0 1 701
Xxxxxxx X. Xxxx & Associates, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
PB Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Re: Closing Conditions to Stock Purchase Agreement
Dear Gentlemen:
This Letter Agreement ("Agreement") is entered into by and
among Xxxxxxx X. Xxxx & Associates, L.P., a California limited partnership
("RCBA"), PB Capital Partners, L.P., a Delaware limited partnership
("Purchaser"), and Perini Corporation, a Massachusetts corporation ("Seller")
effective as of November 8, 1996 (RCBA, Purchaser and Seller shall collectively
be referred to as the "Parties"). Unless otherwise provided herein, all
capitalized terms shall have the meaning given to them in the Stock Purchase
and Sale Agreement dated July 24, 1996, as amended to and including the date of
this Agreement ("Stock Agreement"), by and among the Parties.
This Agreement is intended to provide the Parties with certain
interim representations and warranties relating to the current status of the
conditions which must be satisfied prior to the Closing of the Stock Agreement.
The Parties hereby agree that these interim representations and warranties do
not relieve any Party of the obligation to make such further representations
and warranties as are required under the terms of the Stock Agreement.
The Seller represents and warrants that, as of the date of
this Agreement, all of the representations and warranties contained in Sections
5.1 through 5.25 of the Stock Agreement, inclusive, are true and accurate in
all material respects, that there is no material violation of any
78
covenant applicable to Seller pursuant to the Stock Agreement, and that there
has been no material failure to satisfy any condition required to be satisfied
prior to the date hereof.
Each of RCBA and Purchaser hereby represents and warrants that
it does not, as of the date hereof, have any actual knowledge of facts (i) that
constitute a violation by Seller of the covenants contained in Sections 7.7,
7.8, 7.9, 7.10, 7.14, 7.15 and 7.19 of the Stock Agreement, or (ii) that
constitute a breach by Seller of any representation and warranty contained in
Article 5 of the Stock Agreement (other than in Section 5.22). RCBA and
Purchaser further represent that RCBA has no right to terminate the Stock
Agreement pursuant to Section 7.4 thereof.
Furthermore, each of RCBA and Purchaser represents and
warrants that, as to Section 5.22 of the Stock Agreement, it does not deem any
changes affecting Seller (i) of which RCBA has been advised by Seller or (ii)
of which RCBA otherwise has actual knowledge, in either case as of the date of
this Agreement (collectively, "Known Changes"), to constitute a Material
Adverse Change within the meaning of the Stock Agreement. Notwithstanding the
preceding sentence, (x) the Known Changes affecting Seller may, together with
any changes affecting Seller other than Known Changes, constitute a Material
Adverse Change within the meaning of the Stock Agreement, and (y) the further
deterioration in Seller's business after the date hereof due to Known Changes
affecting Seller may also constitute a Material Adverse Change.
This Agreement may be executed through the use of separate
signature pages or in any number of counterparts, and each of such counterparts
shall, for all purposes, constitute one agreement binding on all the Parties
hereto, notwithstanding that all the parties are not signatories to the same
counterpart.
Each of the Seller, RCBA and the Purchaser acknowledges that
the banks listed on Exhibit 3.9 to the Stock Purchase Agreement have relied on
this letter agreement in entering into Amendment No. 7 to the Bridge Credit
Agreement with the Seller and the Participation Agreement with the Purchaser.
2
79
IN WITNESS WHEREOF, the Parties hereto have entered into this
Agreement effective as of the DATE FIRST written above.
Perini CORPORATION
BY:
---------------------------------
XXXXXXX X. XXXX & ASSOCIATES, L.P.
BY:
---------------------------------
PB CAPITAL PARTNERS, L.P.
BY:
---------------------------------
3
80
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into
as of November __, 1996 by and among Perini Corporation, a Massachusetts
corporation ("Perini"), Xxxxx-Xxxxxx Corporation, a California corporation
("Xxxxx-Xxxxxx") and Xxxxxx X. Tutor ("Tutor"), an individual and President of
Xxxxx-Xxxxxx.
WHEREAS, Perini has had some difficulty meeting its cash requirements
for the past year due to, inter alia, its high level of capital-intensive civil
construction work and the cash support required by its real estate assets;
WHEREAS, Perini's financial condition has impeded its ability to
perform on existing projects and to bid on new projects;
WHEREAS, during the course of 1996, Perini engaged in an extensive
search for new capital to support its cash needs and to provide it the
opportunity to improve operations and improve its competitiveness in the
general contracting and construction industry;
WHEREAS, as a result of its search for capital, Perini entered into a
Stock Purchase and Sale Agreement dated July 24, 1996 by and among Xxxxxx, XX
Capital Partners, L.P., a Delaware limited partnership ("PB Capital Partners"),
and Xxxxxxx X. Xxxx & Associates, L.P., a California limited partnership
("RCBA") (as amended through the date hereof, the "Stock Purchase Agreement"),
pursuant to which it is contemplated that Perini will issue convertible
preferred stock to PB Capital Partners in exchange for an investment by PB
Capital Partners of $30,030,000 (the "Investment");
WHEREAS, Xxxxx-Xxxxxx is a limited partner of PB Capital Partners;
WHEREAS, Xxxxx-Xxxxxx directly owns approximately 7.24% of the
outstanding common stock, par value $1.00 per share (the "Common Stock") of
Perini;
WHEREAS, Xxxxx-Xxxxxx has from time to time engaged in construction
joint ventures with Perini under the name Xxxxx-Xxxxxx/Xxxxxx;
WHEREAS, considering the existing and potential relationships, direct
and indirect, between Xxxxx-Xxxxxx and Perini, as well as Tutor's expertise and
achievements in the construction industry, the parties hereto desire, in
connection with and contingent upon the Investment, that Xxxxx-Xxxxxx provide
the services of Tutor to Perini, for the purpose of providing direction to
Perini with respect to its ongoing and future construction operations and
improving Perini's operating efficiency and thus its ability to successfully
compete for new projects and in new areas;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereby agree as follows:
81
1. Effectiveness. Unless sooner terminated pursuant to Section 6
hereof, this Agreement shall become effective on the date of the closing of the
Investment (the "Effective Date").
2. Management.
(a) Xxxxx-Xxxxxx and Tutor each hereby agree to provide
to Perini the management services of Tutor, to assist Perini from time to time
(but for no more than ten (10) days in any calendar month, unless the parties
otherwise agree in writing) as described in Section 2(b) hereof or as the
parties hereto may otherwise agree.
(b) Tutor shall initially serve as acting Chief Operating
Officer of Perini, and will provide direction with respect to Perini's ongoing
and future construction operations, with the goal of achieving greater
operating efficiencies, reducing Perini's need for working capital, reducing
Perini's exposure to risk by negotiating and bidding on construction projects
that will yield higher profit margins than current projects, negotiating with
Perini's lenders, bonding companies and insurers, and generally improving
Perini's cash flow situation and competitive position in the general
contracting and construction industry.
(c) Perini hereby agrees to take all action which may be
required to: (i) appoint Tutor acting Chief Operating Officer of Perini; (ii)
provide Tutor with the use of an office at Perini's principal executive offices
and administrative and other support services as may be reasonably necessary in
connection with the performance of Tutor's services under Section 2(b) hereof;
(iii) make available to Tutor the services of such of its employees and
consultants as may be reasonably necessary to the performance of the services
described in Section 2(b) above; and (iv) issue the Option (as defined below)
and otherwise pay the management fee pursuant to Section 3 hereof.
3. Compensation. In return for the provision of Tutor's
services, Perini shall pay a management fee as follows:
(a) On the Effective Date, Perini shall issue to Tutor,
pursuant to Perini's 1982 Stock Option and Long-Term Performance Incentive
Compensation Plan, as amended (the "Plan") (or, in the event options are
unavailable for issuance under such plan, with similar terms and conditions as
under the Plan), an option (the "Option") exercisable for 150,000 shares of
Common Stock, with an exercise price per share equal to the closing price of
the Common Stock on the American Stock Exchange on the day prior to the
Effective Date. The Option will first become exercisable forty months after
the Effective Date.
(b) Beginning on the Effective Date, Perini shall pay a
fee to Xxxxx-Xxxxxx at the rate of $150,000 per year, such amount to be paid in
twelve equal monthly installments in arrears on the 15th of each month, or as
the parties hereto shall otherwise agree in writing.
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82
4. Limitation of Liability.
(a) Neither Tutor nor Xxxxx-Xxxxxx makes any express or
implied representation, warranty or guaranty to Perini relating to the services
to be performed by Tutor pursuant to this Agreement or the quality or results
of such services.
(b) Neither Tutor nor Xxxxx-Xxxxxx shall be liable to
Perini or to any of its subsidiaries or affiliates or to any third party for
failure to perform the services to be performed by either of them pursuant to
this Agreement for any expense, claim, loss or damage, including, without
limitation, indirect, special, consequential or exemplary damages, suffered
other than by reason of such party's intentional failure to perform the
services to be performed by such party pursuant to this Agreement, or by reason
of action taken or omitted to be taken by such party which was in bad faith and
in a manner not reasonably believed by such party to be in the best interests
of Perini.
5. Indemnification. Perini shall indemnify and hold Tutor and
Xxxxx-Xxxxxx harmless against all loss, cost, liability and expense arising out
of the performance of this Agreement by Tutor and Xxxxx-Xxxxxx, upon the same
terms and conditions as those provided to officers and directors of Perini by
Section 9 of the By-laws of Perini. A true, complete and correct copy of
Section 9 of the By-laws of Perini is attached hereto as Exhibit A.
6. Termination. Unless earlier terminated by the parties, this
Agreement shall terminate upon the earliest to occur of (i) December 31, 1998,
(ii) Tutor's inability to perform the services contemplated hereby, whether
because of death, disability or otherwise, (iii) written notice from Perini to
Tutor after, in the determination of a majority of the Executive Committee of
the Board of Directors of Perini, Tutor has failed to perform his obligations
under this Agreement, and (iv) the reasonable determination by the Board of
Directors or Executive Committee of Perini, and written notice thereof to
Tutor, that it would be inadvisable for Tutor to continue performing the
services contemplated by this Agreement.
7. Governing Law. This Agreement shall be construed under and
governed by the internal laws of the Commonwealth of Massachusetts without
regard to its conflict of laws provisions.
8. Notices. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the date on which
receipt is acknowledged or the expiration of three days after deposit in United
States post office facilities properly addressed with postage prepaid. All
notices to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
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83
TO XXXXX-XXXXXX
OR TUTOR: Xxxxx-Xxxxxx Corporation
c/o Xxxxxx X. Tutor
00000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
With a copy to: [COUNSEL]
TO PERINI: Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxx X. Xxxxxx
With a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
Any notice given hereunder may be given on behalf of any party by such party's
counsel or other authorized representative.
9. Entire Agreement. This Agreement, including the exhibit
referred to herein, is complete, reflects the entire agreement of the parties
with respect to its subject matter, and supersedes all previous written or oral
negotiations, commitments and writings. No promises, representations,
understandings, warranties and agreements have been made by any of the parties
hereto except as referred to herein; and all inducements to the making of this
Agreement relied upon by either party hereto have been expressed herein.
10. Assignability; Binding Effect. This Agreement shall not be
assignable by any of the parties hereto without the written consent of the
other parties. This Agreement shall be binding upon and enforceable by, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
11. Execution in Counterparts. For the convenience of the parties
and to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
12. Amendments. This Agreement may not be amended or modified,
nor may compliance with any covenant set forth herein be waived, except by a
writing duly and validly executed by each party hereto, or in the case of a
waiver, the party waiving compliance.
13. Confidentiality. Xxxxx-Xxxxxx and Tutor each hereby agree (i)
to keep confidential and not use in any manner adverse to Perini or any of its
subsidiaries or affiliates any confidential information about Perini, any of
its subsidiaries or any of its affiliates,
4
84
including without limitation financial information, trade secrets, bidding
processes and other information with respect to actual or prospective bids made
or being considered to be made by any of them and (ii) to indemnify and hold
harmless Perini, its subsidiaries and its affiliates for any and all loss,
cost, liability and expense arising out of a breach of this provision.
5
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first set forth above by their duly authorized
representatives.
PERINI CORPORATION
By:
---------------------------------------
Title:
XXXXX-XXXXXX CORPORATION
By:
---------------------------------------
Title:
XXXXXX X. TUTOR
------------------------------------------
6
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EXHIBIT A
SECTION 9. Indemnification of Directors and Officers
9.1 General. subject to the provision of this Section and any limittions
imposed by law, the corporation shall indemnify its directors and officers
against all expenses incurred by them in connection with any proceeding in
which they are involved by reason of their serving in such capacities except
that (i) no indemnification shall be provided for any director or officer with
respect to any matter as to which he shall have been adjudicated not to have
acted in good faith and in the reasonable belief that his action was in the
best interests of the corporation, or with respect to a criminal matter, that
he had reasonable cause to believe that his conduct was unlawful, and (ii) no
indemnification shall be provided for any director or officer with respect to a
proceeding by or in the right of the corporation in which he is adjudicated to
be liable to the corporation. Such indemnification may be provided to an
officer or director in connection with a proceeding in which it is alleged that
he received an improper personal benefit by reason of his position, regardless
of whether the claim involves his services in such capacity, subject to the
foregoing limitation, unless it shall have been determined that an improper
personal benefit was received by the director or officer. Except as provided
in Section 9.2. indemnification under this Section 9 shall be authorized in
each case as determined by the board of directors, which may act
notwithstanding that one or more of these members are parties to the proceeding
in question or otherwise have an interest in such indemnification.
9.2 Mandatory Indemnification. Notwithstanding any contrary provisions
of this Section, if a director or officer of the corporation has been wholly
successful on the merits in defense of any proceeding in which he was involved
by reason of his position or an a result of his servinq in such capacity
(including the termination of investigative or other proceedings without a
finding of fault on the part of the director of officer), he shall be
indemnified by the corporation against all expenses incurred by him in
connection therewith.
9.3 Definitions. For purposes of this Section 9:
(a) A"director" or "officer" means any person serving in an
office filled by appointment or election by the directors or the stockholders
and also includes (i) a director
87
or officer of the corporation serving at the request of the corporation as a
director, officer, employee, trustee, partner or other agent of another
organization, (ii) any person who formerly served as a director or officer, and
(iii) the heirs or personal representatives of such persons;
(b) "Expenses" means all expenses (including attorneys fees and
disbursements) actually and reasonably incurred in defense of a proceeding or
in successfully seeking indemnification under Section 9.2 hereof, and any
judgments, awards, fines, penalties and reasonable amounts paid in settlement
of a proceeding; and
(c) A"proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, and any claim which could be the subject of a proceeding.
9.4 Advances. Except as limited by law, expenses incurred by a director
or officer in defending any proceeding in which he is involved by reason of
serving in such capacities may be paid by the corporation in advance of final
disposition of the proceeding upon receipt of his written undertaking to repay
such amount if it is ultimately determined that he is not eligible to be
indemnified, which undertaking shall be an unlimited general obligation but
need not be secured and may be accepted without regard to the financial ability
of such persons to make repayment; provided, that no such advance payment shall
be made if it is determined by the board of directors on the basis of the
circumstances known at the time (without further investigation) that said
director or officer will ultimately be ineligible to be indemnified under this
section 9.
9.5 Settlement Proceedings. If a proceeding is compromised or settled
in a manner which imposes a liability or obligation upon a director or officer,
(i) no indemnification shall be provided to him with respect to a proceeding by
or in the right of the corporation unless the board of directors determines in
its discretion that indemnification is appropriate under the circumstances, and
(ii) no indemnification shall be provided to him with respect to any other type
of proceeding if it is determined by the board of directors that said director
or officer is ineligible to be indemnified under this Section 9. The
determination by the board of directors in each case shall be made on the basis
of the circumstances know to it at that time without further investigation.
9.6 Insurance. The corporation shall have power to purchase and
maintain insurance on behalf of any director,
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officer, employee or agent of the corporation against any liability or cost
incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability or cost.
9.7 Employee Benefit Plans. If the corporation or any of its directors
or officers sponsors, undertakes or incurs any responsibility as a fiduciary
with respect to an employee benefit plan, then, for purposes of indemnification
of such person under this Section (i) a "director" or "officer" shall be deemed
to include any director or officer of the corporation who serves at its request
in any capacity with respect to said plan, (ii) such director or officer shall
be deemed not to have failed to have acted in good faith and in the reasonable
belief that his action has in the best interests of the corporation if he acted
in good faith and in the reasonable belief that his action was in the beat
interest of the participants or beneficiaries of said plan, and (iii)
"expenses" shall be deemed to include any taxes or penalties assessed on such
director or officer with respect to said plan under applicable law.
9.8 Other Provisions. The provisions of this section 9 shall not be
construed to limit the power of the corporation to indemnify its officers or
directors to the full extent permitted by law and enter specific agreements or
arrangements for this purpose. In addition, the corporation shall have power
to indemnify any of its agents or employees who are not directors or officers
on any terms consistent with law which it deems to be appropriate.
9.9 Amendment. The provisions of this Section 9 may be amended or
repealed by the stockholders; however, no such amendment or repeal which
adversely affects the rights of a director of officer under this Section 9 with
respect to his acts or omissions at any time prior to such amendment or repeal,
shall apply to him without consent.
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AMENDMENT TO BY-LAWS OF PERINI CORPORATION
1. Section 3.3 of the By-Laws shall be amended and
restated in its entirety as follows:
"3.3 Executive Committee and Other Committees.
The directors, by a vote of a majority of the directors then in
office, shall elect from their number an Executive Committee composed
of five members and may elect such other committees the directors
shall determine, and delegate to them authority to act as and for the
Board to the extent permitted by law and as provided herein.
"(A) Neither the board of directors nor
the Corporation shall take any of the following actions without the
prior approval of a majority of the members of the Executive
Committee: (a) any borrowing or guarantee by the corporation
exceeding $15 million, (b) except for issuances of stock or stock
options pursuant to the corporation's incentive compensation plans or
programs, any issuance of stock (whether common or preferred, whether
voting or non-voting, whether junior or senior to the Series B
Cumulative Convertible Preferred Stock) other than Common Stock of the
corporation in an amount not exceeding five percent (5%) of the issued
and outstanding Common Stock on September __, 1996, (c) any strategic
alliance (other than a construction joint venture) involving a capital
commitment exceeding $5 million, (d) any asset sale or lease exceeding
$5 million (other than equipment dispositions in the normal course of
business); (e) any redemption or amendment of the Preferred Share
Purchase Rights, of the kind authorized and declared on September 23,
1988 and distributed by the Corporation in September 1988 as the same
have been amended prior to September __, 1996 ('Rights'), or the
preferred stock of the Corporation issuable upon the exercise of such
Rights, or any amendment of the Rights Agreement by and between the
Corporation and the First National Bank at Boston, dated as of
September 23, 1988, as amended; and (f) any termination of (other than
a termination upon expiration) or amendment to the management
agreement between the Corporation and Xxxxx-Xxxxxx Corporation;
provided, however, that for purposes of this Section 3.3(A) of the
By-Laws, approval of the Executive Committee shall not be required for
any decision by the Board of Directors to redeem the Series B
Cumulative Convertible Preferred Stock pursuant to Section 6(a) of the
terms thereof. Notwithstanding the foregoing sentence, the board of
directors of the Corporation may take any of the actions specified in
the preceding sentence if, after having consulted with and considered
the advice of outside counsel, it has reasonably determined in good
faith that the failure of the board to take such action would be
likely to cause the members of such board to breach their fiduciary
duties under applicable law.
"(B) The Executive Committee shall make
the rules for the conduct of its business; provided, however, that it
shall have no permanent
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chairman, shall report its actions to the board of directors, and
shall keep minutes of its meetings. Other Committees created and
elected by the directors may exercise such powers other than those
powers delegated to the Executive Committee, as the directors
determine. Except as the directors may otherwise determine, any such
other committee may make the rules for the conduct of its business,
but unless otherwise provided by the directors or waived, its business
shall be conducted, or its actions taken as nearly as may be the same
manner as is provided for by these by-laws with respect to meetings or
for the conduct of business or the taking of action by the directors.
"(C) All members of such committees shall
hold such offices, and all such committees shall exist, solely at the
pleasure of the board of directors; provided, however, that the
Executive Committee may not be disbanded, reorganized, or
reconstituted without the prior written approval of a majority of the
members of the Executive Committee as constituted prior to such change
(if the holders of the Series B Cumulative Convertible Preferred Stock
then have the right to designate more than one member of the Executive
Committee pursuant to the Certificate of Vote establishing such
series, including the members so designated by the holders of the
Series B Cumulative Convertible Preferred Stock); provided further,
however, that the board shall not take any action that would result in
there being fewer members of the Executive Committee designated by the
holders of the Series B Cumulative Convertible Preferred Stock than
such holders are entitled to designate pursuant to the Certificate of
Vote establishing such series. The board shall have the power to
rescind any action of any committee (other than decisions or actions
of the Executive Committee pursuant to Section 3.3(A) or 4.5 hereof);
provided, however, that no such rescission shall have any retroactive
effect."
2. Section 4.5 of the By-Laws shall be amended by
replacing the phrase "subject to the direction of the directors" each time it
appears therein with "subject to the direction of the Executive Committee for
so long as it exists and thereafter subject to the direction of the directors."
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