EXHIBIT 4.1
STOCK ASSIGNMENT AND ASSUMPTION AGREEMENT
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This Stock Assignment and Assumption Agreement ("Assignment Agreement") is
entered into this 13th day of December 1996, by and among PB Capital Partners,
L.P., a Delaware limited partnership ("Assignor"), The Union Labor Life
Insurance Company Separate Account P ("Assignee") and Perini Corporation
("Seller").
WHEREAS, Assignor is a party to a Stock Purchase and Sale Agreement by and
among Assignor, Seller, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P., dated July 24,
1996, together with all exhibits and schedules thereto and all amendments and
modifications thereof (collectively referred to as the "Stock Purchase
Agreement"), pursuant to which Assignor agreed to purchase 150,150 shares of
newly issued Series B Cumulative Convertible Preferred Stock, par value $1.00
per share (the "Series B Preferred Stock"), of Seller for $30,030,000;
WHEREAS, Assignor wishes to assign to Assignee, and Assignee wishes to
accept assignment from Assignor, (i) all of Assignor's rights and obligations
under the Stock Purchase Agreement to purchase from Seller at least 32,500
shares but not more than 37,500 shares of Series B Preferred Stock of Seller,
and (ii) all other rights, remedies, and obligations of Assignor under the Stock
Purchase Agreement with respect to the Assigned Shares (defined below);
WHEREAS, the precise number of shares of Series B Preferred Stock (which
such number shall be at least 32,500 but not more than 37,500) which the
Assignee has the rights and obligation to purchase under the Stock Purchase
Agreement and this Assignment (the "Assigned Shares") shall be specified in
writing by Assignor at least seven (7) days prior to the Closing (as defined in
the Stock Purchase Agreement);
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each of the parties agrees as follows:
1. Assignment and Assumption.
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(a) Upon the terms and subject to the conditions appearing herein, the
Assignor hereby transfers, assigns and delegates to the Assignee all of
Assignor's rights, title, interest, remedies, duties and obligations relating to
the purchase of the Assigned Shares under the Stock Purchase Agreement
(collectively, the "Assigned Rights").
(b) Upon the terms and subject to the conditions appearing herein, on the
basis of the representations, warranties and covenants of Seller in the Stock
Purchase Agreement, Assignee hereby accepts the foregoing assignment and
delegation and, in addition, expressly assumes and agrees to keep, perform and
fulfill all of the terms, covenants, conditions, duties and obligations
insofar as they relate to the Assignee's purchase of the Assigned Shares of the
Series B Preferred Stock which are required to be kept, performed and fulfilled
by the Assignor pursuant to the Stock Purchase Agreement from and after the date
of this Assignment. Assignor represents and warrants that it has delivered to
Assignee a true and complete copy of the Stock Purchase Agreement.
(c) Assignor, Assignee and Seller hereby agree as follows:
(1) All obligations of Assignor and Assignee under the Stock Purchase
Agreement shall be several, and Assignee and Assignor shall not be jointly
obligated in any respect.
(2) All covenants, duties, obligations and liabilities of Assignee
arising under the Stock Purchase Agreement as a result of this Agreement shall
be limited to the covenants, duties, obligations and liabilities that relate to
the Assigned Shares. Without limiting the generality of the immediately
preceding sentence, neither Assignee nor Assignor shall have any responsibility
for any breach or default, or failure in performance, of the other under the
Stock Purchase Agreement.
(3) Except as hereinafter provided, wherever in the Stock Purchase
Agreement there is any reference to "Purchaser", as defined in the Stock
Purchase Agreement, that reference shall mean and refer to each of "Purchaser"
and "The Union Labor Life Insurance Company Separate Account P." Without
limiting the generality of the foregoing, (i) all obligations of Seller to
Purchaser, including, without limitation, those arising under the
representations, warranties and covenants of Seller in, or as provided for
under, the Stock Purchase Agreement, shall be to each of Assignor and Assignee,
(ii) all approvals, agreements, consents and waivers of Purchaser under the
Stock Purchase Agreement must be given by each of Assignor and Assignee, (iii)
all disclosures that Seller is required to make to Purchaser under the Stock
Purchase Agreement or applicable law and all information that Seller must
provide to Purchaser must be made and provided to Assignor and Assignee, and
(iv) the Stock Purchase Agreement may not be amended or modified without the
written consent of each of Assignor and Assignee.
(4) Assignee's representations and warranties under Section 2 of this
Agreement shall be substituted for any representation and warranties of Assignee
under Article VI of the Stock Purchase Agreement; and Assignee hereby makes such
representations and warranties appearing in such Section 2 to Seller as well as
Assignor.
(5) If Seller requires that Assignee provide an opinion of counsel to
Seller under Section 4.8 of the Stock Purchase Agreement, Assignee may deliver
an opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, special counsel to
Assignee, which opinion shall cover such matters as may be reasonably requested
by Seller.
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(6) Assignee shall become a party to the Registration Rights Agreement
referred to in Section 3.11 of the Stock Purchase Agreement, upon terms
reasonably satisfactory to Assignee.
(7) Assignee shall not become a party to the Voting Agreement referred
to in Section 3.12 of the Stock Purchase Agreement.
(8) Assignee has no authority to designate, and in fact has not
designated, any person to serve a director of Seller or to serve on the
Executive Committee of Seller.
(9) Seller shall take reasonable measures to establish procedures to
deal with, and minimize the effects of, conflicts of interest of directors and
officers of Seller and shall from time to time provide Assignee with such
information with respect to such procedures and their application to specific
circumstances as Assignee may reasonably request.
(10) All notices to Assignee under the Stock Purchase Agreement shall
be given in the manner provided in Section 14.1 thereof and to Assignee as
follows:
If to Assignee:
The Union Labor Life Insurance Company
Separate Account P
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile ▇▇▇-▇▇▇-▇▇▇▇
(11) Assignee's obligation to purchase the Assigned Shares shall be
conditioned upon Assignor's representations and warranties in Section 3(d)
hereof being true and correct as of the Closing Date.
(12) The Stock Purchase Agreement is hereby amended to incorporate the
foregoing provisions of his Section 1(c) to the extent necessary to give effect
to such provisions and to avoid any inconsistency between such provisions and
the Stock Purchase Agreement.
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2. Further Representations and Warranties of Assignee. In addition to
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Assignee's assumption of the obligations under the Stock Purchase Agreement, the
Assignee hereby represents and warrants to, and agrees with, Assignor (which
representations and warranties shall be true and complete on the date hereof and
on the Closing Date, as defined in the Stock Purchase Agreement) as follows:
(a) The Assignee has the full corporate power and authority to
execute, deliver and perform its obligations under this
Assignment Agreement and the Stock Purchase Agreement as they
relate to the purchase of the Assigned Shares of Series B
Preferred Stock. The Assignee has taken all action required by
law, its charter, its by-laws or otherwise required to be taken
by it to authorize the execution and delivery of this Assignment
Agreement and the consummation of the transactions contemplated
to be performed by it under the Assignment Agreement and the
Stock Purchase Agreement.
(b) The execution, delivery and performance of this Agreement by
Assignee (a) has been duly approved by all required corporate
action, (b) will not violate, conflict with, result in a breach
of or constitute a default (with or without notice or passage of
time, or both) under (i) the articles of incorporation, charter,
or by-laws or any governing document of the Assignee, (ii) any
indenture, agreement or other instrument to which Assignee is a
party or by which any of its property may be bound, (iii) any
judgment, order, decree, award or ruling, or (iv) any federal,
state or local law, rule or regulation. No consent, authorization
or approval of, or declaration, filing or registration with, or
exemption by, any governmental or regulatory authority is
required to be obtained by Assignee in connection with the
execution and delivery of, and the performance by the Assignee of
its obligations under, this Assignment Agreement or Stock
Purchase Agreement or the consummation by the Assignee of the
transactions to be performed by it as contemplated hereby and
thereby.
(c) The Assignee (a) has such knowledge, sophistication and
experience in business and financial matters that it is capable
of evaluating the merits and risks of an investment in the Series
B Preferred Stock, (b) fully understands the nature, scope and
duration of the limitations on transfer contained in the Stock
Purchase Agreement, (c) can bear the economic risk of an
investment in the Series B Preferred Stock and can afford a
complete loss of such investment, (d) has determined that the
Series B Preferred Stock is a suitable investment for the
Assignee, and (e) is purchasing the Series B Preferred Stock for
investment purposes and not with a view to, or for a sale in
connection with, any public distribution in violation of the
Securities Act of 1933 (the "Act"). The Assignee acknowledges (x)
that it
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has received copies of the documents filed by Seller with the
Securities and Exchange Commission (the "SEC Documents") filed
with the SEC since January 1, 1996, and a copy of the private
placement memorandum prepared by the Assignor for investors in
limited partnership interests of the Assignor, and (y) that it
has read the documents described in clause (x).
(d) There is no claim, suit, action, proceeding or investigation
(whether in law or equity, before or by any government entity or
before any arbitrator) pending or, to the knowledge of the
Assignee, threatened against the Assignee, the outcome of which
would in any manner impair the ability of the Assignee to perform
its obligations under the Assignment Agreement or the Stock
Purchase Agreement.
(e) The Assignee has not entered into, nor will enter into, during
the term of the Assignment Agreement or the Stock Purchase
Agreement, any agreement or understanding with any person or
entity that will result in the obligation of the Seller or
Assignor to pay any finder's fee, brokerage commission or similar
payment in connection with the transactions contemplated in the
Assignment Agreement or Stock Purchase Agreement.
(f) The Assignee is financially capable and has, or will have at the
time of purchasing the Series B Preferred Stock, sufficient cash
and other resources available to complete the transactions
contemplated by the Assignment Agreement and Stock Purchase
Agreement.
(g) The Assignee understands that the Series B Preferred Stock has
not been registered under the Act or under the securities laws of
any state, and, therefore cannot be transferred, resold, pledged,
hypothecated, assigned, or otherwise disposed of unless it is
subsequently registered or qualified under the Act and under
applicable state securities laws, or an exemption from
registration and/or qualification is available. The Assignee will
not sell or otherwise transfer any of the Series B Preferred
Stock without registration under the Act or pursuant to an
exemption therefrom, and understands and agrees that, except as
provided in the Registration Rights Agreement, the Assignor is
not obliged to register or qualify the Series B Preferred Stock
on behalf of the Assignee, or in assisting the Assignee with
complying with any exemption from such registration or
qualification.
(h) If the Assignee is a corporation, partnership, trust employee
benefit plan, individual retirement account, ▇▇▇▇▇ plan, or other
tax-exempt entity,
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such Assignee is authorized and qualified to enter into the
Agreement and invest in securities such as the Series B Preferred
Stock.
(i) If the Assignee holds assets from employee benefit plans (the
"Plans"), the Assignee represents and warrants that: (i) it is a
fiduciary of the Plans; (ii) the Assignee understands the nature
of the investment in the Series B Preferred Stock; and (iii) the
Assignee has given appropriate consideration to the investment in
the Series B Preferred Stock.
(j) The Assignee is an "accredited investor" as that term is defined
under the Securities Act of 1933 and Regulation D promulgated and
pursuant thereto.
3. Representations and Warranties of Assignor. In connection with the
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Assignee's decision to purchase Series B Preferred Stock and Seller's decision
to permit such assignment, the Assignor hereby acknowledges, represents and
warrants, and agrees with the Assignee and, as to Section 3(d) only, with Seller
(which representations and warranties shall be true and complete on the date
hereof and on the Closing Date, as defined in the Stock Purchase Agreement) as
follows:
(a) The Assignor is a limited partnership duly formed, validly
existing and in good standing under the Delaware Revised Limited
Partnership Act (the "Partnership Act") and has the partnership
power and authority to execute, deliver, and perform its
obligations under this Agreement and own its properties and carry
on its business. The General Partner of the Assignor is ▇▇▇▇▇▇▇ ▇.
▇▇▇▇ & Associates, L.P., a validly existing limited partnership in
good standing under the California Revised Limited Partnership
Act. The General Partner has the partnership power and authority
to execute and deliver this Agreement and perform the obligations
hereunder.
(b) There is no claim, suit, action, proceeding or investigation
(whether in law or equity, before or by any government entity or
before any arbitrator) pending or, to the knowledge of the
Assignor, threatened against the Assignor, the outcome of which
would in any manner impair the ability of the Assignor to perform
its obligations under the Assignment Agreement or the Stock
Purchase Agreement.
(c) The execution, delivery and performance of this Agreement by
Assignor (a) has been duly approved by all required partner
action, (b) will not violate, conflict with, result in a breach of
or constitute a default (with or without notice or passage of
time, or both) under (i) the partnership agreement governing
Assignor, (ii) the Stock Purchase Agreement, (iii)
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any indenture, agreement or other instrument to which Assignor is
a party or by which any of its property may be bound, (iv) any
judgment, order, decree, award or ruling or (v) any federal, state
or local law, rule or regulation. No consent, authorization or
approval of, or declaration, filing or registration with, or
exemption by, any governmental or regulatory authority is required
to be obtained by Assignor in connection with the execution and
delivery of, and the performance by the Assignor of its
obligations under, this Assignment Agreement or Stock Purchase
Agreement or the consummation by the Assignor of the transactions
to be performed by it as contemplated hereby and thereby.
(d) The Assigned Rights (i) constitute the valid and enforceable right
to purchase the Assigned Shares from Seller under and in
accordance with the Stock Purchase Agreement, free and clear or
all liens, encumbrances charges and restrictions (other than the
restrictions appearing in this Agreement, the Stock Purchase
Agreement, and those imposed by the Act), and (ii) are being
transferred and assigned to Assignor free and clear of all liens,
encumbrances, charges and restrictions (other than the
restrictions appearing in this Agreement, the Stock Purchase
Agreement, and those imposed by the Act).
(e) To the Assignor's actual knowledge, (i) the representations and
warranties of Seller in Article V in and under the Stock Purchase
Agreement are true and correct, (ii) Seller is not in material
breach or default of its obligations under the Stock Purchase
Agreement, and (iii) there is no fact presently known to it that
would cause Assignor not to consummate the transactions
contemplated in the Stock Purchase Agreement. At the same time,
Assignee acknowledges and is aware of the poor financial condition
of the Seller, the risks involved in investing in a company in
poor financial condition, and the possibility that Seller is in
worse financial condition than Assignor in good faith believes it
to be.
4. Modification. This Assignment Agreement shall not be modified,
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discharged or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
5. Notices. Any notice, demand or other communication that any party
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hereto may give to anyone interested hereunder shall be sufficiently given if
given in the manner provided in Section 14.1 of the Stock Purchase Agreement; to
Assignor as specified in such Section 14.1; and to Assignee as specified in
Section 1(c)(12) of this Agreement.
6. Binding Effect. Upon execution by both of the parties hereto, this
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Assignment Agreement shall be binding upon and inure to the benefit of the
parties and their heirs, executors,
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administrators, successors and legal representatives, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws now or hereafter in effect relating to
creditors' rights and general principles of equity and except to the extent that
rights to indemnity and contribution may be limited by federal or state
securities laws or policies underlying such laws.
7. Entire Agreement. This Assignment Agreement, together with the Stock
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Purchase Agreement, the Registration Rights Agreement, the Certificate of Vote
of Directors with respect to the Series B Preferred Stock and the Shareholders'
Agreement constitute the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
8. Assignability. This Assignment Agreement is not transferable or
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assignable by any party hereto.
9. Applicable Law. This Assignment Agreement shall be governed by and
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construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof.
10. Counterparts. This Assignment Agreement may be executed through the
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use of separate signature pages or in any number of counterparts, and each of
such counterparts shall, for all purposes, constitute one agreement binding on
all the parties, notwithstanding that all parties are not signatories to the
same counterpart.
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IN WITNESS WHEREOF, the parties hereto have entered into this Assignment
Agreement as of the date first written above.
THE UNION LABOR LIFE INSURANCE
COMPANY, SEPARATE ACCOUNT P
By: _________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
PB CAPITAL PARTNERS, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, Inc.
By: _________________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Financial
Officer and Managing Director
PERINI CORPORATION
By: __________________________
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