STOCK PURCHASE AND SALE AGREEMENT
Dated as of July 24, 1996
By and Among
Xxxxxxx X. Xxxx & Associates, L.P.
PB Capital Partners, L.P.,
and
Perini Corporation
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Table of Contents
ARTICLE I - DEFINITIONS; CERTAIN REFERENCES........................ 1
ARTICLE II - CLOSING............................................... 6
2.1 Time and Place of the Closing.................... 6
2.2 Transactions at the Closing...................... 6
ARTICLE III - CONDITIONS PRECEDENT TO OBLIGATIONS OF RCBA OR
PURCHASER........................................ 6
3.1 Compliance by Seller............................. 7
3.2 No Legal Action.................................. 7
3.3 Certificate of Vote of Directors................. 7
3.4 Amendment of Bylaws.............................. 7
3.5 Rights Agreement................................. 7
3.6 Employment Contracts............................. 7
3.7 American Stock Exchange.......................... 7
3.8 Due Diligence.................................... 8
3.9 Credit and Bonding Agreements.................... 8
3.10 Legal Opinions................................... 8
3.11 Registration Rights Agreement.................... 8
3.12 Voting Agreement................................. 9
3.13 Other............................................ 9
3.14 HSR.............................................. 9
ARTICLE IV - CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER......... 9
4.1 Compliance by RCBA and Purchaser................. 9
4.2 No Legal Action.................................. 9
4.3 Opinion of Independent Investment Banking Firm... 9
4.4 Employment Contracts............................. 10
4.5 American Stock Exchange.......................... 10
4.6 Credit and Bonding Agreements.................... 10
4.7 HSR.............................................. 10
4.8 Legal Opinions................................... 10
4.9 Current Ownership................................ 10
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER............... 10
5.1 Organization, Good Standing, Power, Authority, Et 10
5.2 Capitalization of Seller......................... 11
5.3 SEC Documents.................................... 11
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5.4 Authority and Qualification of Seller............ 12
5.5 Subsidiaries..................................... 12
5.6 Outstanding Securities........................... 12
5.7 No Contravention, Conflict, Breach, Etc.......... 13
5.8 Consents......................................... 13
5.9 No Existing Violation or Default................. 13
5.10 Environmental Matters............................ 13
5.11 Licenses and Permits............................. 16
5.12 Title to Properties.............................. 16
5.13 Taxes............................................ 16
5.14 Litigation....................................... 18
5.15 Labor Matters.................................... 18
5.16 No Illegal or Improper Transactions.............. 19
5.17 Contracts........................................ 19
5.18 Finder's Fees.................................... 19
5.19 Financial Statements............................. 19
5.20 Employee Benefit Plans; ERISA.................... 19
5.21 Contingent Liabilities........................... 22
5.22 No Material Adverse Change....................... 22
5.23 Investment Company............................... 24
5.24 Exemption from Registration; Restrictions on
Offer and Sale of Same or Similar Securities......24
5.25 Disclosure....................................... 24
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF RCBA AND PURCHASER . 24
6.1 Organization, Good Standing, Power, Authority,
Etc.......... .................................. 24
6.2 No Conflicts; No Consents.........................25
6.3 Investment Intent, Etc............................25
6.4 Litigation........................................25
6.5 Certain Fees......................................26
6.6 Financial Ability.................................26
ARTICLE VII - COVENANTS OF THE PARTIES .............................26
7.1 Restrictive Legends...............................26
7.2 Executive Committee...............................26
7.3 Seller's Board of Directors.......................27
7.4 Perini Disclosure Schedule........................27
7.5 Certificates for Shares and Conversion Shares To
Bear Legends..................................... 27
7.6 Removal of Legends................................29
7.7 Pre-Closing Activities............................29
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7.8 Information.......................................29
7.9 Shareholder Meeting...............................29
7.10 Proxy Statement...................................29
7.11 Registration Rights...............................30
7.12 Stock Exchange Listing............................30
7.13 HSR...............................................30
7.14 Acquisition Proposals.............................30
7.15 Publicity.........................................31
7.16 Reservation of Shares.............................31
7.17 Confidentiality...................................31
7.18 Use of Proceeds...................................32
7.19 Maintenance of Business...........................32
ARTICLE VIII - STANDSTILL...........................................32
8.1 Generally.........................................32
8.2 Voting............................................33
8.3 Length............................................33
ARTICLE IX - TERMINATION............................................35
ARTICLE X - EVENTS OF DEFAULT.......................................35
10.1 By Seller.........................................35
10.2 By Purchaser......................................36
10.3 Specific Remedies.................................36
ARTICLE XI - SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............37
ARTICLE XII - PERFORMANCE; WAIVER...................................37
ARTICLE XIII - SUCCESSORS AND ASSIGNS...............................37
ARTICLE XIV - MISCELLANEOUS.........................................38
14.1 Notices...........................................38
14.2 Expenses..........................................39
14.3 Governing Law.....................................39
14.4 Severability; Interpretation......................39
14.5 Headings..........................................39
14.6 Entire Agreement..................................39
14.7 Counterparts......................................39
14.8 Absence of Third Party Beneficiary Rights.........39
14.9 Mutual Drafting...................................39
14.10 Further Representations...........................40
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14.11 Specific Performance; Remedies....................40
14.12 Right of First Refusal; Transfer of Securities....40
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STOCK PURCHASE AND SALE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and
entered into as of July 24, 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").
WHEREAS, Seller is engaged primarily in the construction
business; and
WHEREAS, Seller wishes to sell, and Purchaser wishes to
purchase, an aggregate of 150,150 newly issued shares ("Shares") of Series B
Cumulative Convertible Preferred Stock of Seller ("Series B Cumulative
Convertible Preferred Stock"), such stock being subordinate only to the existing
outstanding $21.25 Convertible Exchangeable Preferred Stock ("$21.25 Preferred
Stock") of Seller for the consideration and upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
respective representations, warranties, covenants, agreements and conditions
contained herein, each of RCBA, Purchaser and Seller (together "Parties") agree
as follows:
ARTICLE I
DEFINITIONS; CERTAIN REFERENCES
The terms defined in this Section 1, whenever used in this
Agreement, shall have the following meanings for all purposes of this Agreement:
1.1 "Acquisition Proposal" has the meaning set forth in
Section 7.14 of this Agreement.
1.2 "Act" means the Securities Act of 1933, as amended.
1.3 "Affiliate" has the meaning set forth in Rule 12b-2 under
the Exchange Act.
1.4 "Annual Report" has the meaning set forth in Section 5.5.
1.5 "Articles of Organization" means the Articles of
Organization of Seller as filed with the Office of the Secretary of State for
the Commonwealth of Massachusetts, as amended from time to time.
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1.6 "Bylaw Amendments" means the Amendments to the Bylaws of
the Seller, to be approved by the Board of Directors prior to the Closing Date
and submitted by the Seller to the shareholders of Seller for ratification at
the Shareholder Meeting, a true and correct copy of which is attached as Exhibit
1.6 hereto.
1.7 "Certificate of Vote of Directors" means the Certificate
of Vote of Directors classifying 500,000 shares as Series B Cumulative
Convertible Preferred Stock, to be filed by Seller with the Office of the
Secretary of State for the Commonwealth of Massachusetts on or prior to the date
and time of the Closing, a true and correct copy of the text of which is
attached as Exhibit 1.7 hereto.
1.8 "Closing" has the meaning set forth in Section 2.1 of this
Agreement.
1.9 "Closing Date" has the meaning set forth in Section 2.1 of
this Agreement.
1.10 "Common Stock" means the common stock, par value $1.00
per share, of Seller.
1.11 "Conversion Shares" means the shares of Common Stock
issuable or issued upon conversion of the Shares pursuant to the terms of this
Agreement and the Certificate of Vote of Directors.
1.12 "Encumbrance" has the meaning set forth in Section 5.5 of
this Agreement.
1.13 "Environmental Claims" means any and all claims, actions,
causes of action, or other written notices by any Person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or civil or criminal
penalties) arising out of or resulting from (i) the presence or release into the
environment of any Hazardous Material at any location, whether or not owned or
operated by the Seller or any Subsidiary of Seller, or (ii) any violation of any
Environmental Laws.
1.14 "Environmental Laws" means any and all applicable
federal, state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, judicial orders, decrees, codes,
injunctions, permits, consent decrees, consent orders and governmental
restrictions, now in effect, relating to human health, the environment or to
emissions, discharges or releases of pollutants, contaminants, Hazardous
Materials or wastes into the environment, including without limitation ambient
air, surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, Hazardous Materials or wastes
or the clean-up or other remediation thereof.
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1.15 "Environmental Permits" means any and all permits,
licenses, authorizations, certificates and approvals of governmental authorities
relating to or required by Environmental Laws and necessary for the business of
the Seller and the Subsidiaries as currently conducted.
1.16 "Environmental Subsidiary" means Perini Environmental
Services, Inc.
1.17 "ERISA" has the meaning set forth in Section 5.20(b) of
this Agreement.
1.18 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
1.19 "Government Entity" means any foreign, federal, state, or
local court or tribunal or administrative, governmental or regulatory body,
agency, commission, division, department, public body or other authority.
1.20 "Hazardous Materials" means any and all toxic,
radioactive, caustic or otherwise hazardous substances or pollutants, including
petroleum, its derivatives, by-products and other hydrocarbons regulated by, or
for which liability may be imposed under, Environmental Laws.
1.21 "Knowledge of Seller" means to the actual knowledge of
(i) any executive officer or director of the Seller or any Subsidiary of Seller
or (ii) a person who is listed on Exhibit 1.21, which exhibit will be agreed
upon by the parties and filed together with the Perini Disclosure Schedule.
1.22 "Licenses" has the meaning set forth in Section 5.10(g)
of this Agreement.
1.23 "Material Adverse Effect" has the meaning set forth in
Section 5.4 of this Agreement.
1.24 "Multiemployer Pension Plan" means a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
1.25 "New Directors" has the meaning set forth in Section 7.3
of this Agreement.
1.26 "Perini Securities" has the meaning set forth in Section
8.1(a) of this Agreement.
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1.27 "Person" means and includes an individual, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization and a
Government Entity.
1.28 "Proxy Statement" means the proxy statement to be sent to
the shareholders of Seller in connection with the Shareholder Meeting of Seller
with respect to, among other matters, the Shareholder Meeting Matters.
1.29 "Purchase Price" means $200.00 multiplied by the number
of Shares to be purchased by Purchaser and $30,030,000 in the aggregate.
1.30 "Purchaser" has the meaning set forth in the first
recital of this Agreement.
1.31 "RCBA" has the meaning set forth in the first recital of
this Agreement.
1.32 "Registration Rights Agreement" means the Registration
Rights Agreement to be dated as of the date of the Closing among Seller and the
Purchaser, in substantially the form attached as Exhibit 1.32 hereto which shall
be revised to include additional provisions governing notice, indemnification,
black-out rights and hold back agreements, as amended, supplemented and modified
from time to time in accordance with the terms thereof.
1.33 "Representatives" has the meaning set forth in Section
3.8 of this Agreement.
1.34 "Rights Agreement" means the rights agreement between
Perini Corporation and The First National Bank of Boston dated September 23,
1988, as amended.
1.35 "SEC" means the Securities and Exchange Commission.
1.36 "SEC Documents" means all documents filed by Seller with
the SEC since January 1, 1993.
1.37 "Seller Plan" means each "employee benefit plan" (as
defined in Section 3(3) of ERISA), whether or not subject to ERISA and any other
employee benefit, bonus, fringe benefit, deferred compensation, equity based
compensation, severance and welfare plan, employment or severance agreement and
any similar arrangement that is maintained or contributed to by Seller or any
Subsidiary for the benefit of any employee or former employee or director or
former director of Seller or any Subsidiary, in such capacity, and any other
plan for which Seller or any Subsidiary could incur liability under Section 412
of the Code or Title IV of ERISA other than Multiemployer Pension Plans.
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1.38 "Shareholder Meeting" has the meaning set forth in
Section 7.9 of this Agreement.
1.39 "Shareholder Meeting Matters" has the meaning set forth
in Section 7.9 of this Agreement.
1.40 "Shares" has the meaning set forth in the second recital
of this Agreement.
1.41 "Special Default" has the meaning specified in the
Certificate of Vote of Directors.
1.42 "Standstill Period" has the meaning set forth in Section
8.3 of this Agreement.
1.43 "Stock Purchase" means the purchase of Series B
Cumulative Convertible Preferred Stock by Purchaser from Seller under this
Agreement.
1.44 "Subsidiary" means, with respect to Seller, any
corporation, limited or general partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or other entity analogous to
any of the foregoing of which a majority of the equity ownership (whether voting
stock or comparable interest) is, at the time, owned, directly or indirectly by
Seller.
1.45 "Taxes" means any and all taxes, levies or other like
assessments, charges or fees (including estimated taxes, charges and fees),
including, without limitation, income, corporation, add-on minimum, ad valorem,
advance corporation, gross receipts, transfer, excise, property, sales, use,
value-added, license, payroll, employment, severance, pay as you earn,
withholding on amounts paid by or to the relevant party, social security and
franchise or other governmental taxes or charges, imposed by the United States
or any state, county, local or foreign government or subdivision or agency
thereof; and such term shall include any interest, penalties or additions to tax
attributable to such taxes.
1.46 "Tax Return" means any report, return, statement or other
written information required to be supplied to a taxing authority in connection
with Taxes.
1.47 "Transaction Documents" means this Agreement, the Bylaw
Amendments, the Certificate of Vote of Directors, the Registration Rights
Agreement, and the Voting Agreement.
1.48 "Transfer Restricted Security" means a share of Series B
Cumulative Convertible Preferred Stock, a Conversion Share, and any other
security which has not been
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either effectively registered under the Act or distributed to the public
pursuant to Rule 144 under the Act until such share of Series B Cumulative
Convertible Preferred Stock, Conversion Share, or other security (i) has been
effectively registered under the Act and disposed of in accordance with a
registration statement filed under the Act covering it or (ii) is distributed to
the public pursuant to Rule 144 under the Act.
1.49 "Voting Agreement" means the Voting Agreement among
Purchaser, Seller, Xxxxx X. Xxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxx-Xxxxxx
Corporation, and, if agreed, Perini Memorial Foundation and Xxxxx X. Xxxxxx
Testamentary Trust under the will of Xxxxx X. Xxxxxx, substantially in the form
attached hereto as Exhibit 3.12.
ARTICLE II
CLOSING
2.1 Time and Place of the Closing. Seller shall as promptly as
practicable notify Purchaser, and Purchaser shall as promptly as practicable
notify Seller when the conditions, contained in Articles III and IV hereof, to
such party or parties' obligation to effect the Stock Purchase have been
satisfied. The closing of the Stock Purchase (the "Closing") shall take place at
the offices of Morris, James, Hitchens & Xxxxxxxx, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, or such other location within Delaware as the
parties may mutually agree, on September 9, 1996 or within one thirty (30) day
extension thereof on the election of any party in the event the conditions set
forth in Sections 3.9, 3.14, 4.6 and 4.7 have not been met (the "Closing Date"),
and shall be effective as of 12:01 a.m. on the Closing Date, unless another
date, effective time, or place is agreed to in writing by Purchaser and Seller.
2.2 Transactions at the Closing. At the Closing, subject to
the terms and conditions of this Agreement, Seller shall issue and sell to
Purchaser and Purchaser shall purchase the Shares. At the Closing, Seller shall
deliver to Purchaser a certificate or certificates representing the number of
Shares to be purchased registered in the name of Purchaser or its nominee
against payment of the Purchase Price with respect thereto by wire transfer of
immediately available funds to an account or accounts previously designated by
Seller.
ARTICLE III
CONDITIONS PRECEDENT TO OBLIGATIONS OF RCBA OR PURCHASER
The obligations of RCBA, Purchaser to be discharged under this
Agreement on or prior to the Closing are subject to satisfaction of the
following conditions at or prior to the
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Closing (unless expressly waived in writing by RCBA and Purchaser at or prior to
the Closing):
3.1 Compliance by Seller. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Seller at or
prior to the Closing shall have been complied with and performed by it in all
material respects, and the representations and warranties made by Seller in this
Agreement shall be true and correct in all material respects at and as of the
Closing, with the same force and effect as though such representations and
warranties had been made at and as of the Closing, except for changes expressly
contemplated by this Agreement and except for representations and warranties
that are made as of a specific time which shall be true and correct in all
material respects only as of such time.
3.2 No Legal Action. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
instituted before or threatened by any Government Entity which presents a
substantial risk of the restraint or prohibition of the transactions
contemplated hereby or the obtaining of material damages or other material
relief in connection therewith.
3.3 Certificate of Vote of Directors. The Certificate of Vote
of Directors shall have been filed for record with the Office of the Secretary
of the Commonwealth for the Commonwealth of Massachusetts and shall have become
effective.
3.4 Amendment of Bylaws. The Bylaw Amendments shall have been
approved and made effective by the Board of Directors of the Seller subject to
Closing.
3.5 Rights Agreement. The Rights Agreement shall be in full
force and effect and not have been otherwise amended, modified or supplemented
on or after the date of this Agreement; provided, however, that the Board of
Directors of the Seller shall have 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).
3.6 Employment Contracts. Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx,
Xxxx X. Xxxxxxxx, Xxxx Xxxxxx and Xxxxxx X. Xxxxxxxx shall have each signed
employment or other agreements with Seller reflecting the terms set forth at
Exhibit 3.6., in forms reasonably acceptable to both Seller and RCBA.
3.7 American Stock Exchange. RCBA and Purchaser shall have
received satisfactory assurance from the American Stock Exchange (the
"Exchange"), in a form reasonably satisfactory to RCBA and Purchaser, that:
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(a) upon ratification within one year hereof of the sale of
Shares described in this Agreement by shareholders of Seller (including holders
of the Shares) in accordance with the rules of the Exchange, all Common Stock
into which the shares are convertible will be eligible for listing on the
Exchange upon such conversion; and
(b) consummation of the transaction will not cause any
securities of the Seller already listed on the American Stock Exchange to lose
their listing privileges.
3.8 Due Diligence. RCBA shall be fully satisfied in its sole
discretion with the results of its review of, and its due diligence
investigations with respect to, the business, operations, affairs, prospects,
properties, assets, existing and potential liabilities, obligations, profits and
conditions (financial or otherwise) of Seller (including Exhibit 1.21 and the
Perini Disclosure Schedule). RCBA shall be deemed to be so satisfied unless it
notifies Seller in writing at or prior to the expiration of the forty-five day
period provided in this Section that RCBA is terminating this Agreement because
it is not so satisfied. For forty-five (45) days after the date on which this
Agreement is entered into, Seller shall (and shall cause each of the
Subsidiaries to) cooperate promptly and fully with RCBA or Purchaser's officers,
employees, counsel, accountants and other authorized representatives
("Representatives") and shall afford such Representatives reasonable access
during normal business hours to all of its (1) sites, properties, books,
contracts and records and personnel and advisers (who will be instructed by
Seller to cooperate) and (2) such additional financial and operating data and
other information as to its business and properties as RCBA may from time to
time reasonably request, including without limitation, access upon reasonable
request to Seller's Representatives, major customers, vendors, suppliers and
creditors for due diligence inquiry and (3) Seller shall (and shall cause each
of the Subsidiaries to) furnish promptly to RCBA or Purchaser all information
concerning its business, properties and personnel as RCBA or Purchaser or their
Representatives may reasonably request during this 45-day period, provided that
any review will be conducted in a way that will not interfere unreasonably with
the conduct of Seller's business. RCBA and Purchaser will keep all information
and documents obtained pursuant to this Section 3.8 on a confidential basis
subject to Section 7.17.
3.9 Credit and Bonding Agreements. Renegotiation and
confirmation of all credit and bonding agreements between Seller and the parties
listed on Exhibit 3.9 shall have been accomplished in a manner reasonably
satisfactory to RCBA and Seller, including receipt by Seller of all necessary
consents to the Transaction Documents and the transactions contemplated therein.
3.10 Legal Opinions. Seller shall have furnished to RCBA and
Purchaser on the Closing Date the opinion of Xxxxxxx, Procter & Xxxx LLP, dated
the Closing Date, in form reasonably satisfactory to RCBA and Purchaser.
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3.11 Registration Rights Agreement. Seller shall have executed
and delivered at the Closing the Registration Rights Agreement.
3.12 Voting Agreement. Xxxxx X. Xxxxxx shall have used his
best efforts to have the Perini Testamentary Trust and the Xxxxx Xxxxxx
Foundation execute the Voting Agreement. Purchaser, Seller, Xxxxx X. Xxxxxx,
Xxxx Xxxxxx, Xxxxxx Xxxxx and Xxxxx-Xxxxxx Corporation and, if they so agree,
Perini Memorial Foundation and Xxxxx X. Xxxxxx Testamentary Trust under the will
of Xxxxx X. Xxxxxx shall each have executed the Voting Agreement substantially
in the form attached as Exhibit 3.12.
3.13 Other. Seller shall have furnished to RCBA and Purchaser
such executed and conformed copies of such certificates, letters and documents
as the RCBA and Purchaser may reasonably request and as are customary for
transactions such as those contemplated by this Agreement.
3.14 HSR. The waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") shall have
expired or been terminated, if applicable.
ARTICLE IV
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller to be discharged under this
Agreement on or prior to the Closing are subject to satisfaction of the
following conditions at or prior to the Closing (unless expressly waived in
writing by Seller at or prior to the Closing):
4.1 Compliance by RCBA and Purchaser. All of the terms,
covenants and conditions of this Agreement to be complied with and performed by
either RCBA or Purchaser at or prior to the Closing shall have been complied
with and performed by such entity in all material respects, and the
representations and warranties made by RCBA and Purchaser in this Agreement
shall be true and correct in all material respects at and as of the Closing,
with the same force and effect as though such representations and warranties had
been made at and as of the Closing, except for changes contemplated by this
Agreement.
4.2 No Legal Action. No action, suit, investigation or other
proceeding relating to the transactions contemplated hereby shall have been
instituted before or threatened by any Government Entity which presents a
substantial risk of the restraint or prohibition of the transactions
contemplated hereby or the obtaining of material damages or other material
relief in connection therewith.
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4.3 Opinion of Independent Investment Banking Firm. Seller
shall have been advised in writing by X. X. Xxxxxx Company and an independent
investment banking firm reasonably satisfactory to Seller (other than X. X.
Xxxxxx Company), that in such banking firms' opinion, the Purchase Price is
fair, from a financial viewpoint, to the Seller and its stockholders.
4.4 Employment Contracts. Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx,
Xxxx X. Xxxxxxxx, Xxxx Xxxxxx and Xxxxxx X. Xxxxxxxx shall have each signed
employment or other agreements with Seller reflecting the terms set forth in
Exhibit 3.6 in forms reasonably acceptable to both Seller and RCBA.
4.5 American Stock Exchange. Seller shall have received
satisfactory assurance from the American Stock Exchange (the "Exchange"), in a
form reasonably satisfactory to Seller, that consummation of the transaction
will not cause Seller or any securities of the Seller already listed on the
American Stock Exchange to lose their listing privileges.
4.6 Credit and Bonding Agreements. Renegotiation and
confirmation of all credit and bonding agreements between Seller and the parties
listed on Exhibit 3.9 shall have been accomplished in a manner reasonably
satisfactory to RCBA and Seller, including receipt by Seller of all necessary
consents to the Transaction Documents and the transactions contemplated therein.
4.7 HSR. The waiting period under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act") shall have
expired or been terminated, if applicable.
4.8 Legal Opinions. RCBA and Purchaser shall have furnished to
Seller on the Closing Date the opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx, dated the
Closing Date, in form reasonably satisfactory to Seller.
4.9 Current Ownership. Except for Xxxxxx Xxxxx and
Xxxxx-Xxxxxx, investors in Purchaser shall not include any Person that holds
more than 1% of Perini Stock without the prior written consent of Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth on the Perini Disclosure Schedule, Seller
hereby represents and warrants to RCBA and Purchaser as follows:
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5.1 Organization, Good Standing, Power, Authority, Etc. Seller
and each of its Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation. Seller has
the full corporate power and authority to execute and deliver this Agreement and
each other Transaction Document and to perform its obligations under this
Agreement and each other Transaction Document. Seller has taken all action
required by law, its Articles of Organization, its by-laws or otherwise required
to be taken by it to authorize the execution, delivery and performance by it of
this Agreement and each other Transaction Document. This Agreement is, and after
the Closing each other Transaction Document will be, a valid and binding
obligation of Seller, enforceable in accordance with its respective terms,
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 that
rights to indemnity and contribution may be limited by federal or state
securities laws or policies underlying such laws. True and complete copies of
the Articles of Organization and bylaws of Seller as in effect on the date
hereof are attached as Exhibit 5.1 hereto.
5.2 Capitalization of Seller.
(a) After giving effect to the Certificate of Vote of
Directors, the authorized stock of Seller will at the Closing consist of:
15,000,000 shares of Common Stock, of which at July 24, 1996, 4,847,853 shares
were outstanding; 100,000 shares of $21.25 Convertible Exchangeable Preferred
Stock, of which at July 24, 1996, 100,000 share were outstanding; 200,000 shares
of Series A Junior Participating Cumulative Preferred Stock, par value $1.00 per
share, none of which shares were outstanding at July 22, 1996. Since March 31,
1996, the Seller has only issued 117,174 shares of Common Stock in accordance
with the terms of its employee benefit plans as in existence on March 31, 1996,
and 6,925 shares of Common Stock in accordance with the quarterly payment of the
annual retainer portion of directors' fees, in all cases in the ordinary course
of business and in a manner and in amounts consistent with past practice.
(b) All of the shares of Series B Cumulative Convertible
Preferred Stock issued at the Closing or issued as dividends pursuant to the
Articles of Organization and the Certificate of Vote of Directors will be duly
authorized, validly issued, fully paid and nonassessable and entitled to the
benefits of, and have the terms and conditions set forth in, the Articles of
Organization and the Certificate of Vote of Directors. The Conversion Shares
will be reserved and will be duly authorized for issuance and, when issued in
accordance with the Articles of Organization and the Certificate of Vote of
Directors, will be duly and validly issued, fully paid and nonassessable.
(c) All outstanding shares of stock of Seller have been duly
authorized, are validly issued, fully paid and nonassessable, are free of
preemptive rights, were not issued in violation of the terms of any agreement or
other understanding binding
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upon or known to the Seller and have been issued in compliance with all
applicable federal and state securities or "blue sky" laws. No further approval
or authority of the shareholders or of the Board of Directors of Seller will be
required for the consummation by Seller of the transactions contemplated by this
Agreement and each of the other Transaction Documents, except for approval of
the Shareholder Meeting Matters at the Shareholder Meeting.
5.3 SEC Documents. Each of the SEC Documents, as of the date
of its filing with the SEC and as of the Closing, did not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
5.4 Authority and Qualification of Seller. Seller has the
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the SEC Documents and as currently owned or
leased and conducted. Seller is duly qualified to transact business as a foreign
corporation and is in good standing in each jurisdiction in which the conduct of
its business or its ownership, leasing or operation of property requires such
qualification, other than any failure to be so qualified or in good standing as
would not singly or in the aggregate with all such other failures reasonably be
expected to have a material adverse effect on the assets, liabilities, results
of operations, prospects or condition (financial or otherwise) of Seller and the
Subsidiaries taken as a whole (each a "Material Adverse Effect").
5.5 Subsidiaries. Exhibit 22 to Seller's Annual Report on Form
10-K for the year ended December 31, 1995 as filed with the SEC ("Annual
Report") is a true, accurate and correct statement of all of the information
required to be set forth in Exhibit 21 by the regulations of the SEC. Each
Subsidiary has been duly incorporated or organized and is validly existing as a
corporation or other legal entity in good standing under the laws of the
jurisdiction of its incorporation or formation, has the corporate or other power
and authority to own, lease and operate its properties and to conduct its
business as described in the SEC Documents and as currently owned or leased and
conducted and is duly qualified to transact business as a foreign corporation or
other legal entity and is in good standing (if applicable) in each jurisdiction
in which the conduct of its business or its ownership, leasing or operation of
property requires such qualification, other than any failure to be so qualified
or in good standing as would not singly or in the aggregate with all such other
failures reasonably be expected to have a Material Adverse Effect. Except as
disclosed in the SEC Documents filed with the SEC prior to the date of this
Agreement, all of the outstanding capital stock of each Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and all capital
stock of Subsidiaries owned by Seller, directly or through Subsidiaries (other
than directors' qualifying shares), are free and clear of any mortgage, pledge,
lien, security interest, restriction upon voting or transfer, claim or
encumbrance of any kind ("Encumbrance") (other than such transfer restrictions
as may exist under federal and state securities laws), and there are no rights
granted to or in favor of any third party (whether
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acting in an individual, fiduciary or other capacity) other than Seller to
acquire any such capital stock, any additional capital stock or any other
securities of any Subsidiary.
5.6 Outstanding Securities. Except as set forth in the SEC
Documents filed with the SEC prior to the date of this Agreement and except as
contemplated by this Agreement, there are no outstanding (a) securities or
obligations of Seller convertible into or exchangeable for any capital stock of
Seller, (b) warrants, rights or options to subscribe for or purchase from Seller
any such capital stock or any such convertible or exchangeable securities or
obligations or (c) obligations of Seller to issue such shares, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
5.7 No Contravention, Conflict, Breach, Etc. The execution,
delivery and performance of each of this Agreement and each of the other
Transaction Documents by Seller and the consummation of the transactions herein
and therein contemplated will not (a) contravene any provision of the Articles
of Organization, by-laws or other organization documents of it or of any of the
Subsidiaries, or (b) conflict with or result in a breach or violation of any of
the terms and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets or
properties of it or of any of the Subsidiaries under, any statute, rule,
regulation, order or decree of any Government Entity having jurisdiction over it
or the Subsidiaries or any of its or their respective properties, assets or
operations, or any indenture, mortgage, loan agreement, note or other agreement
or instrument for borrowed money, any guarantee of any agreement or instrument
for borrowed money or any lease, permit, license or other agreement or
instrument to which it or any of the Subsidiaries is a party or by which it or
any such Subsidiary is bound or to which any of the properties, assets or
operations of it or any such Subsidiary is subject which conflict, breach,
violation, default, creation or imposition has, or will have, individually or in
the aggregate, a Material Adverse Effect.
5.8 Consents. No consent, approval, authorization, order,
registration, filing or qualification of or with any (a) Government Entity or
(b) other third party (whether acting in an individual, fiduciary or other
capacity) is required for the consummation of the transactions contemplated by
this Agreement or by any of the other Transaction Documents to be performed by
Seller, except (i) shareholder approval at the Shareholder Meeting, (ii) such as
will have been obtained and made and will be in full force and effect as of the
Closing and (iii) such as may be required under the Act and state securities
laws in connection with the performance by Seller of its obligations under the
Registration Rights Agreement.
5.9 No Existing Violation or Default. Neither Seller nor any
of the Subsidiaries is in violation of (a) its charter, by-laws or other
organization documents or (b) any applicable law, ordinance, administrative or
governmental rule or regulation or (c) any order, decree or judgment of any
Government Entity having jurisdiction over Seller or any Subsidiary. The
properties, assets and operations of Seller and the Subsidiaries are in
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compliance in all material respects with all applicable federal, state, local
and foreign laws, rules and regulations, orders, decrees, judgments, permits and
licenses relating to public and worker health and safety.
5.10 Environmental Matters.
(a) Compliance.
(i) Seller and Subsidiaries are in compliance with all
applicable Environmental Laws except where the failure to comply does not have a
Material Adverse Effect.
(ii) Neither Seller nor any Subsidiary has received any
written communication from any Person or Government Entity that alleges that
Seller or any Subsidiary is not in compliance with applicable Environmental
Laws.
(b) Environmental Permits. Seller and the Subsidiaries have
all Environmental Permits necessary for the conduct and operation of their
business, and all such permits are in good standing or, where applicable, a
renewal application has been timely filed and is pending agency approval, and
Seller and the Subsidiaries are in compliance with all terms and conditions of
all such Environmental Permits.
(c) Environmental Claims.
(i) There is no Environmental Claim pending or, to the
Knowledge of Seller, threatened against Seller or any Subsidiary, or against any
real or personal property or operation that Seller or any Subsidiary owns,
leases or manages, in whole or in part.
(ii) Neither Seller nor any Subsidiary has received notice
that Seller or any Subsidiary is liable for any response, removal,
investigative, or remedial costs under the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. ss. 9601 et seq., or under
any similar state statute.
(iii) To the Knowledge of Seller, all Hazardous Materials
generated by Seller or any Subsidiary have been transported, stored, treated, or
disposed of by carriers or treatment, storage and disposal facilities authorized
or permitted under all applicable Environmental Laws.
(iv) (a) Seller and the Subsidiaries have fully complied with
all applicable provisions of any Environmental Laws that condition, restrict or
prohibit the transfer, sale, lease or closure of any property for environmental
reasons; (b) neither Seller
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nor any Subsidiary is required to place any notice or restriction relating to
the presence of Hazardous Materials in any instrument or deed to any real
property owned, leased or operated by it; (c) no environmental lien has attached
to any portion of the real property owned or leased by Seller or any Subsidiary;
and (d) no governmental actions have been taken or are in progress that could
subject any or all of the foregoing to any such lien.
(d) Release of Hazardous Materials. To the Knowledge of
Seller, there has not been any release of Hazardous Materials at or from any
facility or real property owned, operated or leased by Seller or any Subsidiary,
except for de minimis releases that would not reasonably be expected to give
rise to liability under the Environmental Laws.
(e) Underground Storage. To the Knowledge of Seller, there are
not now any underground storage tanks on or at any real property leased or
operated by the Seller or any Subsidiary.
(f) Asbestos, PCBs, Etc. To the Knowledge of Seller, no
polychlorinated biphenyls ("PCBs"), asbestos-containing material ("ACM"), or
urea formaldehyde insulation is present at any of the real property currently
owned, leased or operated by Seller or any Subsidiary in such condition or under
such circumstances as would reasonably be expected to give rise to an
Environmental Claim, and Seller and the Subsidiaries have complied in all
material respects with all regulatory requirements relating to the storage,
removal, disposal or release, if any, of ACM or PCBs located on any real
property leased or operated by Seller or any Subsidiary.
(g) Environmental Subsidiary. As to the Environmental
Subsidiary, in addition to the other representations and warranties contained in
this Section 5.10:
(i) There are no claims, actions, causes of action, or other
written notices pending or, to the Knowledge of Seller, threatened against
Seller or any Subsidiary under the Environmental Laws, contract, common law or
otherwise, arising from the Environmental Subsidiary's provision of materials or
services to any Person or entity;
(ii) The Environmental Subsidiary is not listed as the
generator of any Hazardous Material on any waste manifest or other document
prepared pursuant to the Environmental Laws, contract or otherwise, and the
Environmental Subsidiary has not assumed, under the Environmental Laws, contract
or otherwise, the responsibilities or liabilities of the generator of any
Hazardous Material;
(iii) To the Knowledge of Seller, the Environmental Subsidiary
has not performed, and has not provided materials or services used in the
performance of, any remedial action taken pursuant to the Environmental Laws,
where the remedial action is not, or it is alleged by any Person or entity that
the remedial action is not, constructed and operating in accordance with the
Environmental Laws, contract and other applicable requirements; and
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(iv) To the knowledge of Seller, there are no claims, actions,
causes of action, or other written notices pending or threatened against Seller
or any Subsidiary under the Environmental Laws, contract, common law or
otherwise, arising from the Environmental Subsidiary's provision of materials or
services to any Person or entity, that are not subject to coverage under the
Environmental Subsidiary's insurance policies, except where such claims,
actions, causes of action or other written notice will not have a Material
Adverse Effect.
5.11 Licenses and Permits. Seller and the Subsidiaries have
such certificates, permits, licenses, franchises, consents, approvals, orders,
authorizations and clearances from appropriate governmental agencies and bodies
("Licenses") as are necessary to own, lease or operate their properties and to
conduct their businesses in the manner described in the SEC Documents and as
currently owned or leased and conducted and all such Licenses are valid and in
full force and effect except such licenses which the failure to have or to be in
full force and effect individually or in the aggregate do not have a Material
Adverse Effect. To Seller's Knowledge, after due inquiry, Seller and the
Subsidiaries are in compliance in all material respects with their respective
obligations under such Licenses, with such exceptions as individually or in the
aggregate do not have a Material Adverse Effect, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
of such Licenses.
5.12 Title to Properties. Seller and the Subsidiaries have
sufficient title to all material properties (real and personal) owned by Seller
and the Subsidiaries which are necessary for the conduct of the business of
Seller and the Subsidiaries as described in the SEC Documents and as currently
conducted, free and clear of any Encumbrance that may materially interfere with
the conduct of the business of Seller and the Subsidiaries, taken as a whole,
and to the best of Seller's knowledge, after due inquiry, all material
properties held under lease by Seller or the Subsidiaries are held under valid,
subsisting and enforceable leases.
5.13 Taxes.
(a) Seller and each Subsidiary has (i) duly filed (or there
have been filed on its behalf) with the appropriate Government Entities all Tax
Returns required to be filed by it on or prior to the date hereof, all of which
such Tax Returns were correct and complete in all respects and (ii) duly paid in
full or made provision in accordance with generally accepted accounting
principles on the Closing Date Balance Sheet (or there has been paid or
provision has been made on its behalf) for the payment of all Taxes for all
periods ending through the date hereof;
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(b) Seller and each Subsidiary has withheld and paid all taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, stockholder or other third
party;
(c) no federal, state, local or foreign audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of Seller or any Subsidiary;
(d) the income Tax Returns of Seller and each Subsidiary have
been examined by the Internal Revenue Service and the applicable state or local
tax authorities for all periods through and including December 31, 1989 (or the
applicable statutes of limitation for the assessment of income Taxes for such
periods have expired), and no deficiencies were asserted as a result of such
examinations that have not been resolved and fully paid; neither Seller nor any
Subsidiary has granted any requests, agreements, consents or waivers to extend
the statutory period of limitations applicable to the assessment of any Taxes
for which Seller or any Subsidiary may be liable;
(e) there are no Tax liens outstanding against any assets,
properties or business of Seller or any Subsidiary;
(f) neither Seller nor any Subsidiary has filed a consent
under Section 341(f) of the Code to be treated as a collapsible corporation;
(g) neither Seller nor any Subsidiary has made any payments,
is obligated to make any payments or is a party to any agreement which under
certain circumstances could obligate it to make any payments which will not be
deductible under Section 280G of the Code;
(h) neither Seller nor any Subsidiary has been a member of an
affiliated group of corporations filing a consolidated federal income Tax Return
or has any liability for the Taxes of any person under Section 1.1502-6 of the
Treasury Regulations (or any similar provision of state, local or foreign law),
as a transferee or successor, by contract or otherwise;
(i) correct and complete copies of all income Tax Returns,
examination reports and statements of deficiencies assessed against or agreed to
by Seller or any Subsidiary since January 1, 1993 have been made available to
Purchaser and RCBA for their review;
(j) the aggregate unpaid Taxes of the Seller and Subsidiaries
did not, as of March 31, 1996, exceed the reserve for Tax liability (rather than
any reserve for deferred Taxes established to reflect timing differences between
book and Tax income) set forth in the most recent SEC Document, and the
aggregate unpaid Taxes of Seller and Subsidiaries do not exceed that reserve as
adjusted for payments and accruals made through the Closing Date in accordance
with the past custom and practice of Seller and Subsidiaries in filing their Tax
Returns; and
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(k) neither Seller nor any Subsidiary is a party to any tax
sharing, tax indemnity or other agreement or arrangement relating to Taxes with
any Person.
5.14 Litigation. Except as set forth in SEC Documents filed
with the SEC prior to the date of this Agreement, there are no pending actions,
suits, proceedings, arbitrations or investigations against or affecting Seller
or any of the Subsidiaries or any of their respective properties, assets or
operations, or with respect to which Seller or any of the Subsidiaries is
responsible by way of indemnity or otherwise, that are required under the
Exchange Act to be described in such SEC Documents, that questions the validity
of this Agreement or any of the other Transaction Documents or any action to be
taken pursuant to this Agreement or any of the other Transaction Documents, or
that would singly or in the aggregate, with all such other actions, suits,
investigations or proceedings, reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, or could reasonably be expected to
have a material adverse effect on the ability of Seller to perform its
obligations under this Agreement or any of the other Transaction Documents; and,
to the best Knowledge of Seller, after due inquiry, except as set forth in SEC
Documents filed with the SEC prior to the date of this Agreement, no such
actions, suits, proceedings or investigations are threatened or contemplated and
there is no basis for any such action, suit, proceeding or investigation.
5.15 Labor Matters.
(a) Neither Seller nor any Subsidiary is engaged in any unfair
labor practices as defined in the National Labor Relations Act or other
applicable law, ordinance or regulation, and Seller and each Subsidiary is in
compliance in all material respects with all applicable laws respecting
employment and employment practices, terms and conditions of employment, wages,
hours of work and occupational safety and health;
(b) there is no unfair labor practice charge or complaint
pending or threatened against Seller or any Subsidiary before the National Labor
Relations Board nor is there any grievance or any arbitration proceeding arising
out of or under collective bargaining agreements pending or threatened, and
there is no basis for any such charge, complaint or grievance;
(c) there is no labor strike, lockout, slow-down, employment
related arbitration, or work stoppage pending or threatened against Seller or
any Subsidiary;
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(d) neither Seller nor any Subsidiary has experienced any
significant work stoppage nor has Seller or any Subsidiary been a party to any
proceedings before the National Labor Relations Board for the past three years
or been a party to any arbitration proceeding arising out of or under collective
bargaining agreements for the past three years;
(e) there is no charge or compliance proceeding actually
pending or threatened against Seller or any Subsidiary before the Equal
Employment Opportunity Commission or any state, local or foreign agency
responsible for the prevention of unlawful employment practices; and
(f) neither Seller nor any Subsidiary has received notice of
the intent of any Government Entity responsible for the enforcement of labor or
employment laws to conduct an investigation, and no such investigation is in
progress.
5.16 No Illegal or Improper Transactions. Neither Seller nor
any Subsidiary has, nor, to the Knowledge of Seller, has any director, officer
or employee of Seller or any Subsidiary, directly or indirectly, used funds or
other assets of Seller or any Subsidiary, or made any promise or undertaking in
such regard, for (a) illegal contributions, gifts, entertainment or other
expenses relating to political activity; (b) illegal payments to or for the
benefit of governmental officials or employees, whether domestic or foreign; (c)
illegal payments to or for the benefit of any Person, or any director, officer,
employee, agent or representative thereof; or (d) the establishment or
maintenance of a secret or unrecorded fund; and, to the Knowledge of Seller,
there have been no false or fictitious entries made in the books or records of
Seller or any Subsidiary.
5.17 Contracts. All of Seller's material contracts that are
required to be described in the SEC Documents or to be filed as exhibits thereto
are described in the SEC Documents or filed as exhibits thereto and are in full
force and effect. Neither Seller nor any of the Subsidiaries nor, to the best
knowledge of Seller, any other party is in breach of or default under any such
contracts except for such breaches and defaults as in the aggregate have not had
and would not have a Material Adverse Effect.
5.18 Finder's Fees. Except as set forth on the Perini
Disclosure Schedule, no broker, finder or other party is entitled to receive
from Seller, any of the Subsidiaries or any other Person any brokerage or
finder's fee or any other fee, commission or payment as a result of the
transactions contemplated by this Agreement.
5.19 Financial Statements. The audited consolidated financial
statements and related schedules and notes included in the SEC Documents comply
in all material respects with the requirements of the Exchange Act and the Act
and the rules and regulations of the SEC thereunder, were prepared in accordance
with generally accepted accounting principles consistently applied throughout
the period involved and fairly present the financial condition,
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results of operations, cash flows and changes in stockholders' equity of the
Seller and the Subsidiaries at the dates and for the periods presented. The
unaudited quarterly consolidated financial statements and the related notes
included in the SEC Documents present fairly the financial condition, results of
operations and cash flows of Seller and the Subsidiaries at the dates and for
the periods to which they relate, subject to year-end audit adjustments
(consisting only of normal recurring accruals), have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
except as otherwise stated therein and have been prepared on a basis
substantially consistent with that of the audited financial statements referred
to above except as otherwise stated therein.
5.20 Employee Benefit Plans; ERISA.
(a) Schedule 5.20(a) lists each Seller Plan. Seller has
heretofore made available to Purchaser, if applicable, true and complete copies
of each of the following documents: (i) a copy of each such Seller Plan
(including all amendments thereto) or a description of each unwritten plan; (ii)
a copy of the Forms 5500 filed with the Internal Revenue Service with respect to
each such Seller Plan for the last two years; (iii) a copy of the actuarial
report, if any, with respect to each such Seller Plan for the last two years;
(iv) if the Seller Plan is funded through a trust or any third party funding
vehicle, a copy of the trust or other funding agreement (including all
amendments thereto) and the latest financial statements thereof; (v) the most
recent determination letter received from the Internal Revenue Service with
respect to each Seller Plan that is intended to be qualified under Section 401
of the Code; (vi) the most recent summary plan description; and (vii) any forms
filed with Pension Benefit Guaranty Corporation and any Forms 5310 or 5330 filed
with the Internal Revenue Service within the last three years.
(b) (i) none of the Seller Plans is or has been subject to
Title IV of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), (ii) there is no outstanding or contingent liability under Title IV
of ERISA with respect to any Seller Plan; (iii) full and timely payment has been
made of all amounts that Seller and each Subsidiary are required to pay as a
contribution to the Seller Plans; (iv) each of the Seller Plans that is intended
to be "qualified" within the meaning of Section 401(a) of the Code is so
qualified; and (v) no Seller Plan provides benefits, including, without
limitation, death or medical benefits (whether or not insured), with respect to
current or former employees of Seller or any Subsidiary beyond their retirement
or other termination of service (other than (1) coverage mandated by Section
4980B of the Code or state health continuation laws, (2) death benefits or
retirement benefits under any funded "employee pension benefit plan," as that
term is defined in Section 3(2) of ERISA, which is a qualified plan under
Section 401(a) of the Code, and (3) deferred compensation, severance, vacation
or other welfare benefits accrued and identified as liabilities on the books of
Seller and Subsidiaries).
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(c) Neither Seller nor any of its ERISA Affiliates is
contributing to or is obligated to contribute to a Multiemployer Pension Plan
nor does Seller or any Subsidiary have any outstanding liability with respect to
any Multiemployer Pension Plan. Neither the Seller nor any of its ERISA
Affiliates has incurred or expects to incur any liability, except for ongoing
funding obligations, under Title IV of ERISA with respect to any Multiemployer
Pension Plan.
(d) Neither Seller nor any Subsidiary has, since January 1,
1996, made any commitment (i) to create any additional Seller Plan or to modify
in any material respect any existing Seller Plan covering employees engaged in
its businesses or (ii) to create or modify in any material respect any salary,
bonus, and/or profit-sharing arrangement covering such employees.
(e) Neither Seller nor any Subsidiary and no Seller Plan (nor
any trust created thereunder nor any trustee or administrator thereof) has
engaged in any transaction, taken any action, or failed to take any action in
connection with which Seller or any Subsidiary could be subject (whether
directly or indirectly or as indemnitor) to any liability (whether actual or
contingent) or material civil penalty assessed pursuant to Sections 409, 502(c),
502(i), 502(l), or 4071 of ERISA or material tax or material penalty imposed
pursuant to Sections 4971, 4972, 4975 to 4980A, or 5000 of the Code. All returns
and reports that were required to be filed with any Government Entity with
respect to Seller Plans have been filed on a timely basis and were correct and
complete in all material respects.
(f) There are no pending, threatened, or anticipated claims
(other than routine claims for benefits) by, on behalf of, or against any Seller
Plan. No Seller Plan is presently under audit or examination (nor has notice
been received of a potential audit) by the Internal Revenue Service, the
Department of Labor, or Pension Benefit Guaranty Corporation, nor are there any
matters pending with respect to any Seller Plan with the Internal Revenue
Service under its Voluntary Compliance Resolution program, its Closing Agreement
Program, or other similar programs.
(g) Each Seller Plan has been operated in all material
respects in accordance with its terms and with applicable Law.
(h) Except for ongoing funding obligations, no liability under
Title IV of ERISA has been or is expected to be incurred by Seller or any
Subsidiary with respect to any ongoing, frozen or terminated "single-employer
plan," within the meaning of Section 4001(a)(15) of ERISA (a "Title IV Pension
Plan"), currently or formerly maintained by any of them, or any single-employer
plan (an "ERISA Affiliate Plan") of any entity that is considered one employer
with the Seller under Section 4001 of ERISA or Section 414 of the Code (an
"ERISA Affiliate"). Neither any Seller Plan which is a funded employee pension
benefit plan ("Pension Plan") nor any ERISA Affiliate Plan has an "accumulated
funding deficiency"
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(whether or not waived) within the meaning of Section 412 of the Code or Section
302 of ERISA. Neither Seller nor any Subsidiary has provided, or is required to
provide, security to any Pension Plan or to any ERISA Affiliate Plan pursuant to
Section 401(a)(29) of the Code. Neither Seller nor any ERISA Affiliate is, or,
within the last seven years has been, a participating employer under a multiple
employer plan within the meaning of Section 4063 or 4064 of ERISA.
(i) Except for the Employment Contracts referenced in Section
3.6, the consummation of the transactions contemplated by this Agreement will
not (i) entitle any employee to severance pay, unemployment compensation or any
other payment or (ii) accelerate the timing of any payment or the vesting of any
rights or increase the amount of any compensation due any employee or former
employee. Each Seller Plan may be unilaterally amended or terminated without
liability except as to benefits accrued thereunder prior to the amendment or
termination.
5.21 Contingent Liabilities. Except as fully reflected or
reserved against in the financial statements included in the Annual Report or
the Quarterly Report, or disclosed in the footnotes contained in such financial
statements, Seller and Subsidiaries had no liabilities (including tax
liabilities) at the date of such financial statements, absolute or contingent,
that were material either individually or in the aggregate to Seller and
Subsidiaries taken as a whole. Except as so reflected, reserved, or disclosed,
Seller and Subsidiaries have no commitments which are materially adverse either
individually or in the aggregate to Seller and Subsidiaries taken as a whole.
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
(b) any damage, destruction or loss (whether or not covered by
insurance) materially adversely affecting the properties or business of Seller;
or
(c) except as provided for in this Agreement and the other
Transaction Documents, 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
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(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; or
(e) any 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; or
(h) any cancellation, or agreement to cancel, any indebtedness
or other 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 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
(j) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any 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 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
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(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; or
(p) any creation or assumption by Seller of any mortgage,
pledge, security interest or lien or other encumbrance on any asset (other than
liens arising under existing lease financing arrangements which are not material
and liens for taxes not yet due and payable); or
(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; or
(s) the commencement or notice or threat of commencement of
any 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).
5.23 Investment Company. Seller is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
5.24 Exemption from Registration; Restrictions on Offer and
Sale of Same or Similar Securities. Assuming the representations and warranties
of RCBA and Purchaser set forth in Article VI hereof are true and correct in all
material respects, the offer and sale of the Shares made pursuant to this
Agreement will be exempt from the registration requirements of the Act. Neither
Seller nor any Person acting on its behalf has, in connection with the offering
of the Shares, engaged in (a) any form of general solicitation or general
advertising (as those terms are used within the meaning of Rule 502(c) under the
Act), (b) any action involving a public offering within the meaning of Section
4(2) of the Act, or (c) any action which would require the registration of the
offering and sale of the Shares pursuant to this Agreement under the Act or
which would violate applicable state securities or "blue sky" laws. Seller has
not made and will not make, directly or indirectly, any offer or sale of Shares
or of securities of the same or a similar class as the Shares if as a result the
offer and sale of Shares contemplated hereby could fail to be entitled to
exemption from the registration requirements
- 24 -
of the Act. As used herein, the terms "offer" and "sale" have the meanings
specified in Section 2(3) of the Act.
5.25 Disclosure. No representation or warranty concerning the
Seller or any Subsidiary in this Agreement or any Exhibit or Schedule hereto, or
contained in any certificate or instrument delivered or to be delivered by or on
behalf of Seller or any Subsidiaries pursuant to this Agreement, contains or
will contain an untrue statement of material fact, or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
OF RCBA AND PURCHASER
RCBA and Purchaser each hereby represents and warrants to
Seller that:
6.1 Organization, Good Standing, Power, Authority, Etc. Each
of RCBA and Purchaser has the full power and authority to execute and deliver
this Agreement and the Registration Rights Agreement, and to perform its
obligations under this Agreement and the Registration Rights Agreement. Each of
RCBA and Purchaser 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 Agreement and the Registration Rights Agreement and the
consummation of the transactions contemplated to be performed by it hereby and
thereby. Each of this Agreement and the Registration Rights Agreement is a valid
and binding agreement of RCBA and Purchaser, enforceable in accordance with its
respective terms, 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.
6.2 No Conflicts; No Consents. Neither the execution and
delivery of this Agreement and the Registration Rights Agreement nor the
consummation by Purchaser of the purchase contemplated hereby will (i) conflict
with, or result in a breach of, any provision of its partnership agreement or
(ii) violate any statute or law or any judgment, order, writ, injunction,
decree, rule or regulation applicable to RCBA or Purchaser. No consent,
authorization or approval of, or declaration, filing or registration with, or
exemption by, any governmental or regulatory authority is required in connection
with the execution and delivery of, and the performance by RCBA or Purchaser of
their obligations under, this Agreement or the Registration Rights Agreement or
the consummation by RCBA or Purchaser of the transactions to be performed by it
as contemplated hereby and thereby.
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6.3 Investment Intent, Etc. Purchaser (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 Shares, (b)
fully understands the nature, scope and duration of the limitations on transfer
contained in this Agreement, (c) can bear the economic risk of an investment in
the Shares and can afford a complete loss of such investment, and (d) is
purchasing the Shares for investment and not with a view to, or for a sale in
connection with, any public distribution in violation of the Act. Such Purchaser
acknowledges (y) receipt of the SEC Documents filed with the SEC prior to the
date of this Agreement and (z) that such Purchaser has been afforded the
opportunity to ask such questions as it has deemed necessary of, and to receive
answers from, representatives of Seller concerning the merits and risks of
investing in the Shares, and to obtain such additional information that Seller
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy and completeness of the information contained
in such SEC Documents.
6.4 Litigation. There is no claim, suit, action, proceeding or
investigation (whether at law or equity, before or by any Government Entity or
before any arbitrator) pending or, to the knowledge of RCBA or Purchaser,
threatened against or affecting RCBA or Purchaser, the outcome of which would in
any manner impair the ability of RCBA or Purchaser to perform its obligations
hereunder or against the transactions contemplated by this Agreement.
6.5 Certain Fees. Neither RCBA nor Purchaser has entered into,
nor will enter into, during the term of this Agreement, any agreement,
arrangement or understanding with any Person that will result in the obligation
of Seller to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
6.6 Financial Ability. Purchaser is financially capable and
has, or will have upon the Closing Date, sufficient cash and other resources
available to complete the transactions contemplated by this Agreement upon the
terms and conditions set forth in this Agreement.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1 Restrictive Legends. Purchaser covenants and agrees with
Seller that Purchaser will not dispose of any of Purchaser's shares of Series B
Cumulative Convertible Preferred Stock or Conversion Shares (unless, with
respect to such Conversion Shares, such Conversion Shares were previously issued
pursuant to an effective registration statement under the Act) except pursuant
to (a) an effective registration statement under the Act or (b) an applicable
exemption from registration under the Act. In connection with any sale by
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Purchaser pursuant to clause (b) of the preceding sentence, Purchaser shall
furnish to Seller an opinion of counsel reasonably satisfactory to Seller to the
effect that such exemption from registration is available in connection with
such sale.
7.2 Executive Committee. Seller shall, immediately upon the
issuance of the Shares, reconstitute its Executive Committee such that:
(a) the Executive Committee shall have five voting members,
three of whom shall be designated directors of Seller by the Purchaser of Series
B Cumulative Convertible Preferred Stock and two of whom shall be Xxxxx X.
Xxxxxx and/or such other director(s) as may be designated by the Board of
Directors of Seller (excluding directors designated by the holders of the Series
B Cumulative Convertible Preferred Stock pursuant to the Certificate of Vote of
Directors); provided, however, that the holders of Series B Cumulative
Convertible shall not be entitled to designate any greater number of members of
the Executive Committee than the number which they are entitled to designate
pursuant to the terms of the Certificate of Vote of Directors, and
(b) the Executive Committee shall meet regularly and as
needed, in Person or by telephone, and
(c) the Board of Directors shall delegate to the Executive
Committee its power set forth in Section 4 of Seller's by-laws to oversee and
direct the CEO of Seller, and
(d) the Board of Directors shall have adopted the Bylaw
Amendments as set forth in Exhibit 1.6 to prevent the modification of the powers
of the Executive Committee set forth in this Section 7.2 and/or the dissolution
of the Executive Committee, and
(e) the provisions of this Section shall terminate and be of
no further force and effect when and if the holders of Series B Cumulative
Convertible Preferred Stock shall not be entitled to designate more than one
director pursuant to the terms of the Certificate of Vote of Directors.
7.3 Seller's Board of Directors. Seller shall, immediately
upon issuance of the Shares, expand its Board of Directors by three members
("New Directors"), one of whom shall be a Class I director, another of whom
shall be a Class II director and the third of whom shall be a Class III
director, shall appoint persons designated by Purchaser to these three
directorships, and shall not remove such New Directors without cause. For so
long as Purchaser is entitled to nominate at least one Designated Director (as
defined in the Certificate of Vote of Directors) pursuant to the Certificate of
Vote of Directors, Seller shall appoint a
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Designated Director to the Audit Committee, the Nominating Committee, and the
Compensation Committee.
7.4 Perini Disclosure Schedule. Within twenty (20) days of the
date on which this Agreement is entered into, Seller shall provide a disclosure
schedule disclosing with specificity all matters which are inconsistent with
Seller's representations and warranties set forth in Article V ("Perini
Disclosure Schedule"); the parties agree that the Perini Disclosure Schedule
shall become part of this Agreement. Seller agrees that RCBA shall have the
right to terminate this Agreement if it is not, in its sole discretion,
satisfied with the Perini Disclosure Schedule. RCBA shall be deemed to be
satisfied with the Perini Disclosure Schedule unless it notifies Seller in
writing within ten (10) days of the receipt of such Perini Disclosure Schedule
that RCBA is terminating this Agreement because it is not so satisfied.
7.5 Certificates for Shares and Conversion Shares To Bear
Legends.
(a) So long as the shares of Series B Cumulative Convertible
Preferred Stock are Transfer Restricted Securities, they shall be subject to a
stop-transfer order and the certificate or certificates therefor shall bear the
following legend by which each holder thereof shall be bound:
"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
ARTICLES OF ORGANIZATION, AS AMENDED, OF PERINI CORPORATION,
IN THE CERTIFICATE OF VOTE OF DIRECTORS GOVERNING THESE SHARES
AND IN A STOCK PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, 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."
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(b) So long as the Conversion Shares are Transfer Restricted
Securities, they shall, unless previously issued pursuant to an effective
registration statement under the Act, be subject to a stop-transfer order and
the certificate or certificates representing any such Conversion Shares shall
bear the following legend by which each holder thereof shall be bound:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SHARES OR
OTHER SECURITIES ISSUABLE UPON 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
ARTICLES OF ORGANIZATION, AS AMENDED, OF PERINI CORPORATION
AND IN A STOCK PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, 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."
7.6 Removal of Legends. After termination of the requirement
that all or part of such legend be placed upon a certificate, Seller shall, upon
receipt by Seller of evidence reasonably satisfactory to it that such
requirement has terminated and upon the written request of the holders of
Conversion Shares issue certificates for the Conversion Shares that do not bear
such legend.
7.7 Pre-Closing Activities. From and after the date of this
Agreement until the Closing, each of Seller, RCBA and Purchaser shall act with
good faith towards, and shall use commercially reasonable efforts to consummate,
the transactions contemplated by this Agreement, and none of Seller, RCBA, or
Purchaser will take any action that would prohibit or impair its ability to
consummate the transactions contemplated by this Agreement.
7.8 Information. So long as any of the Series B Cumulative
Convertible Preferred Stock or the Conversion Shares are outstanding, Seller
shall file with the SEC the annual reports and quarterly reports and the
information, documents and other reports that are required to be filed with the
SEC pursuant to Sections 13 and 15 of the Exchange Act, whether
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or not Seller has or is required to have a class of securities registered under
the Exchange Act and whether or not Seller is then subject to the reporting
requirements of the Exchange Act, at the xxxx Xxxxxx is or would be required to
file the same with the SEC and, promptly after Seller is or would be required to
file such reports, information or documents with the SEC, to mail copies of such
reports, information and documents to the holders of the Series B Cumulative
Convertible Preferred Stock and the Conversion Shares at their addresses set
forth in the register of Shares and Conversion Shares maintained by the transfer
agent therefor.
7.9 Shareholder Meeting. In connection with the next meeting
of the shareholders of Seller ("Shareholder Meeting"), Seller shall recommend,
and shall use commercially reasonable efforts (including the preparation and
circulation of the Proxy Statement) to obtain, the approval of such holders for
the Transaction Documents, and the transactions contemplated by the Transaction
Documents, and the ratification of the Bylaw Amendments (such items the
"Shareholder Meeting Matters").
7.10 Proxy Statement. Seller covenants that the Proxy
Statement will not include any untrue statement of a material fact, or omit 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, Seller's covenant 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. 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 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.
7.11 Registration Rights. Subject to approval by the
shareholders of Seller, Conversion Shares shall be Registrable Securities, as
defined in the Registration Rights Agreement, and the holders of such Conversion
Shares shall be entitled to the rights of such a holder under the Registration
Rights Agreement.
7.12 Stock Exchange Listing. Subsequent to approval by the
shareholders of the Seller of the Shareholder Meeting Matters at the
Shareholders Meeting, Seller shall take all steps necessary to ensure that the
Conversion Shares are approved for listing, subject to notice of issuance by the
American Stock Exchange and any other securities exchange on which the Common
Stock is listed.
7.13 HSR. To the extent applicable, Seller, RCBA and Purchaser
shall make all filings and furnish all information required with respect to the
transactions contemplated by
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this Agreement by the HSR Act and shall use their best efforts to obtain the
early termination of the waiting period thereunder, provided that neither
Seller, RCBA nor Purchaser shall be required to agree to dispose of or hold
separate any portion of its business or assets.
7.14 Acquisition Proposals.
(a) Prior to the Closing, Seller agrees that neither Seller
nor any Subsidiary nor any of the respective officers and directors of Seller or
any of the Subsidiaries shall, and Seller shall direct and use its best efforts
to cause its employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by Seller or
any Subsidiary) not to, initiate, solicit or encourage, directly or indirectly,
any inquiries or the making of any proposal or offer (including, without
limitation, any proposal or offer to stockholders of Seller) with respect to a
merger, consolidation or similar transaction involving, or any purchase of all
or any substantial portion of the assets or any equity securities of, Seller or
any of the Subsidiaries (any such proposal or offer being hereinafter referred
to as an "Acquisition Proposal") or engage in any negotiations concerning, or
provide any confidential information or data to, or have any discussions with,
any Person relating to an Acquisition Proposal, or otherwise facilitate directly
or indirectly any effort or attempt to make or implement an Acquisition
Proposal; and
(b) Seller will immediately cease and cause to be terminated
any existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. Seller will take the necessary
steps to inform the individuals or entities referred to in the first sentence
hereof of the obligations undertaken in this subsection 7.14(b). Seller will
notify RCBA and Purchaser immediately if any such inquiries or proposals are
received by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with RCBA and Purchaser.
Nothing contained in this Agreement shall prohibit Seller and its directors from
(i) pursuing Acquisition Proposals if, in the exercise of Seller's directors'
good faith judgment (which judgment is based upon the advice of independent,
outside legal counsel) their fiduciary duties to Seller's shareholders so
require, (ii) making to the stockholders any recommendation and related filing
with the SEC, as required by Rules 14e-2 and 14d-9 under the Exchange Act, with
respect to any tender offer, or (iii) from informing the stockholders of Seller
in the proxy materials with respect to the Shareholder Meeting to consider the
transactions contemplated by this Agreement of information that is material to
the vote with respect to such transactions.
7.15 Publicity. Seller, RCBA and Purchaser will consult with
each other and obtain each other's consent before issuing any press release or
otherwise making any public statements with respect to the transactions
contemplated hereby and shall not issue any such press release or make any such
public statement prior to such consultation and consent, except as may be
required by law or by obligations pursuant to any listing agreement with any
securities exchange.
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7.16 Reservation of Shares. Seller shall at all times reserve
and keep available, out of its authorized and unissued stock, solely for the
purpose of effecting the conversion of Series B Cumulative Convertible Preferred
Stock, such number of shares of its Common Stock free of preemptive rights as
shall from time to time be sufficient to effect the conversion of Series B
Cumulative Convertible Preferred Stock from time to time.
7.17 Confidentiality. Each of RCBA and the Purchaser
recognizes and acknowledges that it has in the past, currently has, and in the
future may possibly have, access to certain confidential information of Seller.
Each of RCBA and Purchaser agrees that it will not disclose confidential
information with respect to Seller to any person, firm, corporation, association
or other entity for any purpose or reason whatsoever, except to authorized
representatives of Seller and to counsel and other advisers, provided that such
advisers (other than counsel) agree to the confidentiality provisions of this
Section 7.17, unless (i) such information becomes known to the public generally
through no fault of RCBA or Purchaser, (ii) disclosure is required by law or the
order of any governmental authority under color of law, or (iii) the disclosing
party reasonably believes that such disclosure is required in connection with
the defense of a lawsuit against the disclosing party, provided, that prior to
disclosing any information pursuant to clauses (i), (ii), or (iii) above, RCBA
and/or Purchaser shall, if possible, give prior written notice thereof to Seller
and provide Seller with the opportunity to contest such disclosure.
7.18 Use of Proceeds. The net proceeds of the sale of the
Shares will be used by Seller and its Subsidiaries for general corporate
purposes, and shall not, without the prior written consent of Purchaser (which
consent may be withheld in its sole discretion) be used to pay dividends or pay
down or reduce any debt or securities senior in liquidation preference or
dividend to the Shares ("Action"), provided, however, that no such written
consent of Purchaser shall be required where a majority of the Designated
Directors (as defined in the Certificate of Vote of Directors) approves the
proposed Action. Seller intends that such net proceeds will be used for
investment in the continuing businesses of Seller and the Subsidiaries.
7.19 Maintenance of Business. Seller covenants that between
the date of this Agreement and Closing, it shall and shall cause each of its
Subsidiaries to:
(a) conduct its business (including, but not limited to,
making loans, paying directors, officers and employees, including any salary,
bonus, or other compensation policy, disposing or acquiring assets, and
incurring liabilities) only in the ordinary course, consistent with past
practice,
- 32 -
(b) use commercially reasonable efforts to preserve its
business organizations intact, to retain the services of its present officers
and employees and to preserve the good will of the suppliers and customers and
others having business relations with it,
(c) comply in all material respects with all laws that may be
applicable to its business, (d) not make any noncash distributions or dividends
to its stockholders, and
(e) comply with its stated official accounting policies with
respect to charge-offs and loss provisions.
Subject to the foregoing, any transaction or action that is
not in the ordinary course of business, consistent with Seller's past practice,
shall be subject to the prior written consent of Purchaser.
ARTICLE VIII
STANDSTILL
8.1 Generally. Each of RCBA and Purchaser hereby agrees that
during the Standstill Period (hereinafter defined) it will not, nor will it
permit any of its Affiliates (for purposes of this Agreement, Affiliates of RCBA
and Purchaser shall be deemed to include Xxxxxx Xxxxx and Xxxxx-Xxxxxx
Corporation) to, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire by
purchase, by joining a partnership, limited partnership, syndicate or "group"
any securities of Seller or securities convertible into or exercisable or
exchangeable for such securities (collectively, "Perini Securities"); provided,
however, that nothing contained herein shall prohibit RCBA or Purchaser or the
Affiliates of any of them from acquiring any Perini Securities (w) acquired
pursuant to this Agreement or upon the exchange of Shares for Conversion Shares
as contemplated and permitted by the Articles of Organization and Certificate of
Vote of Directors, (x) as a result of a stock split, stock dividend or similar
recapitalization by Seller, (y) upon the execution of buy orders by any
Affiliate of RCBA or Purchaser which is a registered broker-dealer for the bona
fide accounts of its brokerage customers unaffiliated and not acting in concert
with Purchaser or RCBA, or (z) pursuant to the exercise of any warrant, option
or other right to acquire Perini Securities ("Rights"), which it receives
directly from Seller pursuant to a distribution to stockholders or from
acquiring such Rights directly from Seller; and provided, further, that if
during the Standstill Period, as a result of a business combination transaction
between Seller or an Affiliate of Seller and any other entity which is not RCBA,
Purchaser or any Affiliate of either of them (an "Other Entity"), any one or
more of RCBA or Purchaser or any of their Affiliates shall acquire beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of Perini
Securities in such business combination,
- 33 -
such members may continue to own beneficially such Perini Securities so acquired
by such members and such Perini Securities shall continue to be subject to the
provisions of this Section; and
(b) participate in, or encourage, the formation of any group
(within the meaning of Section 13(d)(3) of the Exchange Act which owns or seeks
to acquire beneficial ownership of, or otherwise acts in respect of, Perini
Securities, with the exception of any group all of whose members are Affiliates
of Purchaser (such group, excluding such Affiliates, a "13D Group").
8.2 Voting. Nothing in this Article VIII shall preclude RCBA
or Purchaser from exercising the voting and other rights granted to RCBA or
Purchaser pursuant to this Agreement or the other Transaction Documents.
8.3 Length. As used herein, the term "Standstill Period" shall
mean the period from the date of this Agreement until the earlier to occur of:
(a) Two (2) years after the Closing Date: or
(b) Seller's material breach of any of its obligations
contained in the Registration Rights Agreement; or
(c) Seller's amendment to its charter or by-laws to alter the
size or powers of the Executive Committee without prior consent from Purchaser;
or
(d) Except as to any bankruptcy filing approved by a majority
of the Designated Directors (as defined in the Certificate of Vote of
Directors), Seller or any of its Subsidiaries shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled "Bankruptcy"
as now or hereafter in effect, or any successor thereto (the "Bankruptcy Code"),
which, in the case of a Subsidiary of Seller, has had or would have a Material
Adverse Effect; or an involuntary case is commenced against Seller or any of its
Subsidiaries and the petition is not controverted within 10 days, or is not
dismissed within 60 days after commencement of the case, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or any substantial part of the property of Seller or any of its
Subsidiaries, which, in the case of a Subsidiary of Seller, has had or would
have a Material Adverse Effect; or Seller or any of its Subsidiaries commences
any other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, rehabilitation, dissolution, insolvency or liquidation or
similar law of any jurisdiction, whether now or hereafter in effect, relating to
Seller or such Subsidiary, or there is commenced against Seller or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days, which, in the case of a Subsidiary of Seller, has had or would have a
Material Adverse Effect; or
- 34 -
Seller or any of its Subsidiaries is adjudicated insolvent or bankrupt, which,
in the case of a Subsidiary of Seller, has had or would have a Material Adverse
Effect; or any order of relief or other order approving any such case or
proceeding is entered, which, in the case of a Subsidiary of Seller, has had or
would have a Material Adverse Effect; or Seller or any of the Subsidiaries
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of 60
days, which, in the case of a Subsidiary of Seller, has had or would have a
Material Adverse Effect; or Seller or any of its Subsidiaries makes a general
assignment for the benefit of creditors, which, in the case of a Subsidiary of
Seller, has had or would have a Material Adverse Effect; or Seller shall fail to
pay, or shall state that it is unable to pay, or shall be unable to pay, its
debts, generally as they become due, which, in the case of a Subsidiary of
Seller, has had or would have a Material Adverse Effect; or Seller or any of its
Subsidiaries shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts, which, in the case of a Subsidiary of
Seller, has had or would have a Material Adverse Effect; or Seller or any of its
Subsidiaries shall by any act or failure to act indicate its consent to,
approval of or acquiescence in any of the foregoing, which, in the case of a
Subsidiary of Seller, has had or would have a Material Adverse Effect; or any
corporate action is taken by Seller or any of its Subsidiaries for the purpose
of effecting any of the foregoing, which, in the case of a Subsidiary of Seller,
has had or would have a Material Adverse Effect; or
(e) without encouragement by or the participation of RCBA,
Purchaser or any of their Affiliates, the acquisition by any Person or 13D Group
(other than RCBA or Purchaser or Affiliates of either) of, the commencement of a
tender offer by such Person or 13D Group for, or the public announcement of an
intention to acquire, securities of Seller which, if added to the securities (if
any) already owned by such Person or 13D Group, would represent fifteen percent
(15%) or more of the total voting power (including rights to acquire voting
power) of Seller's securities, or the receipt by such Person or 13D Group of
Seller's agreement or consent to make such acquisition; provided that a public
announcement or commencement of a tender offer shall end the Standstill Period
only if such Person or 13D Group shall have received Seller's agreement or
consent to make such intended acquisition, and such a tender offer shall
terminate the Standstill Period only if and when the Board of Directors of
Seller shall have (a) recommended approval of such tender offer, (b) not
recommended, within 10 business days after the commencement of such tender
offer, that shareholders reject such tender offer, or (c) amended the Rights
Agreement to permit acquisition of shares under such tender offer; or
(f) the date this Agreement is terminated in accordance with
Article IX hereof.
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ARTICLE IX
TERMINATION
Except for the obligations in Article XI and Sections 7.17 and
10.3, this Agreement and the transactions contemplated hereby shall terminate
without any action by the parties hereto if the Closing shall not have occurred
on or before September 9, 1996, provided, however, that in the event Closing
shall not have occurred solely because one or more of the conditions set forth
in Sections 3.9, 3.14, 4.6 and 4.7 have not been met, any party may elect, by
written notice to the others, to extend such termination until October 9, 1996.
This Agreement may be terminated at any time prior to the Closing (i) by a
written instrument executed and delivered by Seller, RCBA and Purchaser; (ii) by
Seller, if Seller is not satisfied in its reasonable discretion with the
progress of the renegotiations of the credit agreements listed on Exhibit 3.9 by
the twentieth business day after the date of this Agreement; (iii) by RCBA or
Purchaser pursuant to Section 3.8 or upon any material breach or default by
Seller under this Agreement; or (iv) by Seller upon any material breach or
default by RCBA or Purchaser under this Agreement.
ARTICLE X
EVENTS OF DEFAULT
10.1 By Seller. A material breach or default by Seller shall
occur:
(a) in the event that any Representation or Warranty of Seller
set forth in Article V shall be false in any material respect, or
(b) in the event that Seller (or any applicable Subsidiary)
shall not perform in any material respect any covenant required of it in Article
III or Article VII not otherwise waived by RCBA and Purchaser, or
(c) breach of or default by Seller or any Subsidiary under any
of the Transaction Documents.
10.2 By Purchaser. A material breach or default by RCBA or
Purchaser shall occur
(a) in the event that any Representation or Warranty of RCBA
or Purchaser set forth in Article VI shall be false in any material respect, or
(b) in the event that RCBA or Purchaser shall not perform in
any material respect any Covenant required of it in Article IV, VII or VIII not
otherwise waived by Seller, or
(c) breach of or default by RCBA or Purchaser under any of the
Transaction Documents.
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10.3 Specific Remedies. In addition to the termination of this
Agreement and the transactions contemplated herein prior to Closing, in the
event of a material breach or default by a party (the "Breaching Party"), the
following additional remedies shall be available to the non-breaching party (the
"Non-Breaching Party"):
(a) the Breaching Party shall indemnify the Non-Breaching
Party for any and all loss, cost, and expense caused by the breach of
representation, warranty, or covenant; or
(b) in the event that Seller or any Subsidiaries consummate an
Acquisition Proposal at any time prior to the date that is 180 days after the
date hereof, Seller will promptly pay to Purchaser one million five hundred
thousand dollars ($1,500,000.00) unless: (i) either RCBA or Purchaser have
breached this Agreement and Seller has terminated this Agreement pursuant to
Section 10.2, (ii) the conditions set forth in Sections 4.2, 4.5, 4.7 and 4.8
have not been met, or (iii) either RCBA or Purchaser has terminated this
Agreement pursuant to Section 3.8; or
(c) in the event that any of the transactions contemplated in
the Transaction Documents are not consummated for any reason other than (i) the
unwillingness of Purchaser to consummate such transactions, (ii) breach of
representations, warranties or covenants by Purchaser or RCBA followed by
termination of this Agreement under Section 10.2, or (iii) the conditions set
forth in Sections 4.2, 4.5, 4.7 and 4.8 have not been met, Seller shall promptly
pay Purchaser all of its out-of pocket costs and third party expenses (including
professional fees), that RCBA or Purchaser incurred in association with
conducting "due diligence" review of the Seller including for any such due
diligence review undertaken before the execution of this Agreement.
ARTICLE XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties contained in this Agreement
shall survive the execution and delivery of this Agreement and the delivery of
the Shares for a period of three years from the date of such delivery and any
examination or investigation made by any party to this Agreement or any of their
successors and assigns.
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ARTICLE XII
PERFORMANCE; WAIVER
The provisions of this Agreement (including this Article XII)
may be modified or amended, and waivers and consents to the performance and
observance of the terms hereof may be given by written instrument executed and
delivered by Seller and (1) prior to the Closing, by RCBA and Purchaser and (2)
after the Closing, by the holder or holders of a majority of the Series B
Cumulative Convertible Preferred Stock. The failure at any time to require
performance of any provision hereof shall in no way affect the full right to
require such performance at any time thereafter (unless performance thereof has
been waived in accordance with the terms hereof for all purposes and at all
times by the parties to whom the benefit of such performance is to be rendered).
The waiver by any party to this Agreement of a breach of any provision hereof
shall not be taken or held to be a waiver of any succeeding breach of such
provision or any other provision or as a waiver of the provision itself.
ARTICLE XIII
SUCCESSORS AND ASSIGNS
All covenants and agreements contained in this Agreement by or
on behalf of the parties hereto shall bind, and inure to the benefit of, the
respective successors and assigns of the parties hereto; provided, however, that
the rights granted to the parties hereto may not be assigned (except to
wholly-owned subsidiaries of such parties) without the prior written consent of
the other parties. RCBA or Purchaser may assign to one or more of its affiliated
partnerships its obligations hereunder in whole or in part, but shall not be
relieved of such obligations.
ARTICLE XIV
MISCELLANEOUS
14.1 Notices. All notices or other communications given or
made hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, or mailed by overnight courier to, the
following addresses (and shall be deemed effective at the time of receipt
thereof).
If to Seller:
Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx
- 38 -
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: 000-000-0000
If to Purchaser or RCBA:
Xxxxxxx X. Xxxx & Associates, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx Xxxx
Facsimile: 415-434-3130
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxx and
Xxxx X. Xxxxxx
Facsimile: 000-000-0000
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
14.2 Expenses. Except as set forth in Section 10.3, each party
shall bear its own expenses.
14.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware as applied to
contracts made and performed within the State of Delaware, without regard to
principles of conflicts of law. Each of the parties hereto agrees to submit to
the sole and exclusive jurisdiction of the State and Federal courts in the State
of Delaware in any action or proceeding arising out of or relating to this
Agreement.
14.4 Severability; Interpretation. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, each of Seller, RCBA and
Purchaser directs that such court interpret and apply
- 39 -
the remainder of this Agreement in the manner which it determines most closely
effectuates their intent in entering into this Agreement, and in doing so
particularly take into account the relative importance of the term, provision,
covenant or restriction being held invalid, void or unenforceable.
14.5 Headings. The index and section headings herein are for
convenience only and shall not affect the construction hereof.
14.6 Entire Agreement. This Agreement together with the other
Transaction Documents and the Employment Contracts embody the entire agreement
between the parties relating to the subject matter hereof and any and all prior
oral or written agreements, representations or warranties, contracts,
understandings, correspondence, conversations, and memoranda, whether written or
oral, among Seller, RCBA and Purchaser, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest, with respect to the subject matter hereof.
14.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
14.8 Absence of Third Party Beneficiary Rights. No provision
of this Agreement is intended, nor will be interpreted, to provide or to create
any third party beneficiary rights or any other rights of any kind in any
client, customer, affiliate, shareholder, employee, or partner of any party
hereto or any other person or entity.
14.9 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
14.10 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by the other party as to such
tax consequences.
14.11 Specific Performance; Remedies.
(a) Seller acknowledges that Purchaser will be irreparably
harmed and that there will be no adequate remedy at law for any violation by
Seller of the covenants or agreements contained in Sections 7.2 (a) and (c),
7.3, 7.6, 7.9, 7.12, 7.15 and 7.16 of this
- 40 -
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available upon the breach of any such covenants or agreements,
Purchaser shall have the right to obtain injunctive relief to restrain a breach
or threatened breach of, or otherwise to obtain specific performance of, these
covenants and agreements of the Seller.
(b) Purchaser acknowledges that Seller will be irreparably
harmed and that there will be no adequate remedy at law for any violation by
Purchaser of the covenants or agreements contained in Sections 7.15 and 7.17 and
Article 8 of this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available upon the breach of any such covenants or
agreements, Seller shall have the right to obtain injunctive relief to restrain
a breach or threatened breach of, or otherwise to obtain specific performance
of, these covenants and agreements of Purchaser.
14.12 Right of First Refusal; Transfer of Securities.
(a) For two (2) years from the Closing Date, Purchaser
covenants not to transfer the Shares and the Conversion Shares to any Person who
engages in the construction business as a general contractor, construction
manager or engineer constructor competitive with the business of Seller (such
share transfer, a "Competitor Transfer").
(b) After two (2) years from the Closing Date, Purchaser
grants to Seller the right of first refusal, each time that Purchaser plans to
effect a Competitor Transfer. In each such event, Purchaser shall notify Seller
of such proposed Competitor Transfer and provide Seller with the number of
Shares and/or Conversion Shares to be transferred and the price and terms
(including tax treatment) of the proposed Share and/or Conversion Share
transfer. Seller shall have the right in its sole discretion, for a period of
fifteen (15) days after receipt of the notice from Purchaser, to elect by
written notice to Purchaser to purchase all Shares and/or Conversion Shares
subject to the proposed Competitor Transfer on the same terms and conditions
offered by such Competitor ("Purchase Notice"). Seller shall have thirty (30)
days from the date such Purchaser Notice is delivered to Purchaser to effect the
purchase. In the event that Seller does not send the Purchase Notice within the
fifteen (15) day period or does not purchase the Shares and/or Conversion Shares
within thirty (30) days after the Purchase Notice is delivered, Purchaser's
right of first refusal to the proposed Competitor Transfer shall terminate.
(c) The Seller's decision as to whether to send a Purchase
Notice and/or effect the purchase of the Shares and/or Conversion Shares
encompassed by the Purchase Notice shall not require action of the Executive
Committee nor shall the Designated Directors (as defined in the Certificate of
Vote of Directors) vote on this matter.
- 41 -
(d) The rights of first refusal set forth in this Section
shall terminate at the earlier of the fourth anniversary of the Closing Date or
at such time as Purchaser holds less than 50% of the Shares acquired on the
Closing Date (including any Conversion Shares into which any such Shares have
been converted).
(e) For two (2) years from the Closing Date, Purchaser
covenants not to sell or otherwise transfer, or permit anyone else to sell or
otherwise transfer, any interest in Purchaser to any Person who engages in the
construction business as a general contractor, construction manager or engineer
constructor competitive with the business of Seller.
[remainder of page left intentionally blank]
- 42 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
PB CAPITAL PARTNERS, L.P.
By:_________________________
Name:
Title:
XXXXXXX X. XXXX & ASSOCIATES,
L.P.
By:_________________________
Name:
Title:
PERINI CORPORATION
By: ______________________________
Name:
Title:
AMENDMENT #1
Perini Corporation
September 30, 1996
Xxxxxxx X. Xxxx & Associates, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Dear Xx. Xxxx:
This letter will confirm the further extension of certain deadlines
with respect to that certain Stock Purchase and Sale Agreement (the "Agreement")
by and among Xxxxxxx X. Xxxx & Associates, L.P. ("RCBA"), PB Capital Partners,
L.P. and Perini Corporation, dated July 24, 1996, as amended by a letter
agreement dated August 21, 1996, and as further amended by a letter agreement
dated September 16, 1996.
The Agreement is hereby amended as follows:
1. Due Diligence Period. The second sentence of Section 3.8 of the
Agreement is hereby amended to read as follows: "RCBA shall be deemed to be so
satisfied unless it notifies Seller in writing on or prior to 11:59 p.m.,
Pacific Daylight Time on October 16, 1996 that RCBA is terminating this
Agreement because it is not so satisfied." The third sentence of Section 3.8 of
the Agreement is hereby amended by (a) replacing the phrase "For forty-five (45)
days after the date on which this Agreement is entered into," with the phrase
"Until 11:59 p.m., Pacific Daylight Time on October 16, 1996" and (b) replacing
the phrase "during this 45-day period" with the phrase "on or before 11:59 p.m.,
Pacific Daylight Time on October 16, 1996."
2. Perini Disclosure Schedule. The last sentence of Section
7.4 of the Agreement is hereby amended to read as follows: "RCBA shall be deemed
to be satisfied with the Perini Disclosure Schedule unless it notifies Seller in
writing on or before 11:59 p.m., Pacific Daylight Time on October 16, 1996 that
RCBA is terminating this Agreement because it is not so satisfied."
3. Termination by Seller. Article IX(iii) of the Agreement is
hereby amended to read as follows: "by Seller, if Seller is not satisfied in its
reasonable discretion with the progress of the renegotiations of the credit
agreements listed on Exhibit 3.9 by 11:59 p.m., Pacific Daylight Time on October
16, 1996;".
Xxxxxxx X. Xxxx & Associates, L.P.
September 30, 1996
Page 2
As of the execution of this letter agreement, the letter agreements
dated August 21, 1996 and September 16, 1996 shall be null, void and of no
further effect.
Very truly yours,
PERINI CORPORATION
By:________________________________
Name:
Title:
Acknowledged and Agreed as of the date first set forth above:
PB CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, L.P.,
its General Partner
By:___________________________
Name:
Title:
XXXXXXX X. XXXX & ASSOCIATES, L.P.
By:___________________________
Name:
Title:
318290.c1
Perini Corporation
October 9, 1996
Xxxxxxx X. Xxxx & Associates, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Dear Xx. Xxxx:
This letter will confirm the extension of certain deadlines with
respect to that certain Stock Purchase and Sale Agreement (the "Agreement") by
and among Xxxxxxx X. Xxxx & Associates, L.P. ("RCBA"), PB Capital Partners, L.P.
and Perini Corporation, dated July 24, 1996.
1. The second sentence of Section 2.1 of the Agreement is hereby
amended by replacing the words "September 9, 1996" with the words "November 9,
1996".
2. The first sentence of Article IX is hereby amended by replacing the
words "September 9, 1996" with the words "November 9, 1996".
Very truly yours,
PERINI CORPORATION
By:________________________________
Name:
Title:
Xxxxxxx X. Xxxx & Associates, L.P.
October 9, 1996
Page 2
Acknowledged and Agreed as of the date first set forth above:
PB CAPITAL PARTNERS, L.P.
By: Xxxxxxx X. Xxxx & Associates, L.P.,
its General Partner
By:___________________________
Name:
Title:
XXXXXXX X. XXXX & ASSOCIATES, L.P.
By:___________________________
Name:
Title:
321106.c1
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.
- 1 -
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 orafter
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
- 2 -
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
- 3 -
(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
- 4 -
(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
- 5 -
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.
- 6 -
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 prepara tion 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
- 7 -
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.
- 8 -
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 representa tions 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:
- 9 -
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.
- 10 -
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: _____________________
Name:
Title:
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its General Partner
By: __________________
Name:
Title:
XXXXXXX X. XXXX & ASSOCIATES, L.P.
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its General Partner
By: __________________
Name:
Title:
- 11 -
1. Revised Exhibit 1.7
2. Revised Exhibit 1.32
3. Revised Exhibit 3.12
4. Exhibit 3.16
- 12 -
EXHIBIT 1.32
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of September __, 1996, by and among PERINI CORPORATION, a
Massachusetts corporation (the "Corporation"), and PB CAPITAL PARTNERS, INC.
("PB"). Terms not defined herein shall have the meanings given them in the
Purchase Agreement (defined below).
RECITALS
WHEREAS, the Corporation and PB have entered into that certain
Stock Purchase Agreement, dated July __, 1996 (the "Purchase Agreement"),
pursuant to which, in pertinent part, PB purchased and the Corporation sold
certain securities of the Corporation (the "Series B Cumulative Convertible
Preferred Stock");
WHEREAS, pursuant to the terms of the Purchase Agreement, the
Series B Cumulative Convertible Preferred Stock is convertible into shares of
the Corporation's common stock (the "Common Stock"); and
WHEREAS, as a result of the foregoing and pursuant to the
terms of the Purchase Agreement, the Corporation has agreed to register the
shares of Common Stock received by PB pursuant to the terms and conditions set
forth herein.
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing recitals and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. In the event the Corporation files one or more registration
statements (each, a "Registration Statement") for its Common Stock under the
Securities Act of 1933, as amended (the "Act") for a purpose and on a form that
would permit the registration of the Conversion Shares after such time as the
shareholders of the Corporation have ratified the issuance of the Series B
Cumulative Convertible Preferred Stock to PB and approved the issuance of the
Common Stock upon conversion of the Series B Cumulative Convertible Preferred
Stock, the Corporation shall afford PB and any permitted successors and assigns
under the Purchase Agreement (the "Purchasers") a right to participate in the
offering under such registration statement; provided, however, that where the
offeror is the Corporation, such piggy-back right shall subject to the
reasonable judgment of the lead underwriter of the offering that such
participation will not impair the ability of the Corporation to raise the
capital being sought by it; provided further, however, that the Purchasers shall
participate in any such offering on a basis at least as favorable as any other
offeror (other than the Corporation). The Corporation shall use its best efforts
to keep such Registration Statements continuously useable and effective until
such time as such underwriter has completed the distribution of all securities
of the Purchasers registered thereunder (the "Section 1 Effective Period").
- 1 -
2. In the event that (a) no Registration Statement under the
Act has been filed under Section 1 hereof by the later of (i) September __, 1998
or (ii) such time as the shareholders of the Corporation have ratified the
issuance of the Series B Cumulative Convertible Preferred Stock to PB, or (b)
such a Registration Statement was filed but Purchasers continue to hold
unregistered Conversion Shares or Series B Cumulative Convertible Preferred
Stock, then, as promptly as practicable upon request from Purchasers holding
unregistered Conversion Shares (not previous ly sold under Rule 144 without
registration) and Series B Cumulative Convertible Preferred Stock representing
at least fifty percent (50%) of the voting power of the outstanding unregistered
Conversion Shares and Series B Cumulative Convertible Preferred Stock (the
"Requisite Purchasers") (provided that the requesting Purchasers hold
unregistered Conversion Shares (not previously sold under Rule 144 without
registration) and Series B Cumulative Convertible Preferred Stock with the
voting power of at least ______ shares of Common Stock), the Corporation shall
file and use its best efforts to cause to be declared effective a "shelf"
Registration Statement on any appropriate form pursuant to Rule 415 (or similar
rule that may be adopted by the Securities and Exchange Commission (the "SEC"))
under the Act for all such unregistered Common Stock held by the Purchasers and
any Common Stock into which the Series B Cumulative Convertible Preferred Stock
held by the Purchasers may be converted (the "Registrable Securities"), which
form shall be available for the sale of the Registrable Securities in accordance
with the intended method or methods of distribution thereof. Except as set forth
below, the Corporation agrees to use its best efforts to keep the Registration
Statement continuously effective and usable for resale of Registrable Securities
until such time as all the Registrable Securities have been sold pursuant to the
Registration Statement (the "Section 2 Effective Period"). In the event that the
Corporation shall fail to maintain an effective shelf registration until the
Purchasers have sold all of their Registrable Securities, the Requisite
Purchasers shall have the right to demand that the Corporation file and use its
best efforts to cause to be declared effective a second "shelf" Registration
Statement on any appropriate form pursuant to Rule 415 (or similar rule that may
be adopted by the Securities and Exchange Commission (the "SEC")) under the Act
for any and all remaining Registrable Securities.
3. In any such Registration Statement in which Purchasers
participate, the following provisions shall apply:
(a) The Corporation shall pay all reasonable costs (excluding
registration fees, transfer taxes, if any, and fees and expenses of Purchasers'
counsel and any underwriting or selling commissions), fees and expenses
including, without limitation, the Corporation's legal and accounting fees
(including the costs and expenses of any special audit or other procedures),
printing expenses and blue sky fees and expenses.
(b) The Corporation will take all necessary action which may
be required in qualifying or registering the securities included in the
registration statement for offering and sale under the securities or blue sky
laws of such states as reasonably are requested by Purchasers
- 2 -
pursuant to such registration statement and in no event shall the Corporation be
required to effect such qualification or registration if such act would require
the Corporation to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction where it is not now so qualified or
required to file such a consent.
(c) Upon any such registration becoming effective, the
Corporation shall use its best efforts to: (i) keep such registration statement
current until the Purchasers have sold the shares it had registered to sell;
(ii) prepare and file with the SEC amendments and post-effective amendments to
the Registration Statement and such amendments and supplements to the prospectus
used in connection therewith as may be necessary to maintain the effectiveness
of such registration during the Section 1 Effective Period or the Section 2
Effective Period, as the case may be (the "Effective Period"), or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Corporation or by the Act or rules and
regulations thereunder for shelf registration or otherwise necessary to keep the
Registration Statement effective for the Effective Period and cause the
prospectus as so supplemented to be filed pursuant to Rule 424 under the Act,
and to otherwise comply with the provisions of the Act during the Effective
Period; (iii) cause all the securities registered pursuant to such registration
statement to be listed on each exchange or automated quotation system on which
the securities are then listed; (iv) provide a transfer agent and registrar for
all stock registered pursuant to such registration statement and CUSIP number
for all such stock, in each case not later than the effective date of such
registration; and (v) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC; provided, however, that before
filing the Registration Statement or a prospectus contained therein, or any
amendments or supplements thereto, the Corporation will furnish to the
Purchasers and their counsel for review and comment, copies of all documents
proposed to be filed.
(d) As expeditiously as possible furnish to the Purchasers
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as the Purchasers may reasonably request in order to facilitate the
public sale or other disposition of the securities owned by the Purchasers. If
the Corporation has delivered preliminary or final prospectuses to a selling
holder and after having done so the prospectus must be amended to comply with
the requirements of the Act, the Corporation shall promptly notify the selling
holder and such holder shall cease making offers of the securities immediately
upon such request and to return all prospectuses to the Corporation. The
Corporation shall promptly provide the selling holder with revised prospectuses
and, following receipt of the revised prospectuses, the selling holder shall be
free to resume making offers of the securities.
(e) The Corporation shall indemnify and hold harmless the
holder(s) of the securities to be sold pursuant to any registration statement
and each person, if any, who controls such holder within the meaning of Section
15 of the Act or Section 20(a) of the Securities
- 3 -
Exchange Act of 1934, as amended (the "Exchange Act"), against and from all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which any of them may become subject under the Act, the Exchange Act or
otherwise, arising from such registration statement, except such matters in
respect of which such holders are required to indemnify the Corporation under
the next succeeding paragraph.
(f) Each Purchaser, as the holder of securities to be sold
pursuant to a registration statement, and its or their successors and assigns,
shall indemnify and hold harmless the Corporation, its officers and directors
and each person, if any, who controls the Corporation within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against and from all
loss, claim, damage, expense or liability (including all expenses reasonably
incurred in investigating, preparing or defending against any claim whatsoever)
to which they may become subject under the Act, the Exchange Act or otherwise,
arising from information furnished by or on behalf of such holders or its or
their successors or assigns, for specific inclusion in such registration
statement.
(g) Any person entitled to indemnification under this Section
will (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(h) If the indemnification provided for in this Section from
the indemnifying party is unavailable to an indemnified party hereunder or is
insufficient to hold such indemnified party harmless in respect of any losses,
claims, damages, liabilities or expenses referred to herein and to which this
Section would apply by its terms, then the 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 losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in connection
with the actions or inactions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified parties shall be
determined by
- 4 -
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been made by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
(i) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this paragraph were determined by pro rata
allocations or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(j) If indemnification is available under this Section, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in paragraphs E and F without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section.
PERINI CORPORATION PB CAPITAL PARTNERS, L.P.
_____________________ __________________________
- 5 -
EXHIBIT 1.6
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 issu ance 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
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.
Notwith standing 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
chairman, shall report its actions to the board of directors, and shall keep
minutes
- 1 -
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."
- 2 -
EXHIBIT 1.7
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.
- 1 -
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.
- 2 -
(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
- 3 -
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 Con
vertible 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
Cumula tive 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 Cumu lative Convertible Preferred Stock. Each fractional share of Series B
Cumulative Convertible Preferred Stock outstanding shall also be entitled to a
ratably propor tionate amount of any other distributions made with respect to
each outstanding share of Series B Cumulative Convertible Preferred Stock, and
all such
- 4 -
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 peri ods terminating on or prior to the date of payment of such
full cumulative divi dends. 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 contempora neously 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 -
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 -
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 -
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 -
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 -
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 -
(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 -
(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 -
(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 -
(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 -
(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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(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 -
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
- 18 -
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
- 19 -
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
- 20 -
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
conclu sive) 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
- 21 -
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.
- 22 -
(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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(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 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
- 24 -
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
- 25 -
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
- 26 -
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
- 27 -
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
- 28 -
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.
- 29 -
(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.
- 31 -
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 RESTRIC TIONS 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
- 32 -
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
- 33 -
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
- 34 -
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
- 35 -
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 aggre gate 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
- 36 -
decreased, then such court may make such change as shall be necessary to render
the provision in question effective and valid under applicable law.
- 37 -
EXHIBIT 3.12
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;
- 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.
- 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
-----------------------------------
By:__________________________
Its:___________________________
PB CAPITAL PARTNERS, L.P.
--------------------------------
- 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:____________________________
- 5 -
EXHIBIT A
Series B Cumulative Series A Junior
Common Convertible Preferred Participating Preferred
Stock Stock Stock
----- ----- -----
PB Capital
Partners, L.P.
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Foundation
Xxxx Xxxxxx
Perini
Testamentary
Trust
Xxxxx-Xxxxxx
Corporation
Xxxxxx Xxxxx
