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Exhibit (c)
SECURITIES PURCHASE AGREEMENT
DATED AS OF FEBRUARY 5, 2000
AMONG
PERINI CORPORATION,
AND
XXXXX-XXXXXX CORPORATION
AND
O&G INDUSTRIES, INC.
AND
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................................................................ 1
ARTICLE II PURCHASE AND SALE OF SHARES........................................................................... 6
SECTION 2.01 Purchase and Sale of Shares.......................................... 6
SECTION 2.02 Time and Place of the Closing........................................ 7
SECTION 2.03 Transactions at the Closing.......................................... 7
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................................................... 7
SECTION 3.01 Representations and Warranties of the Company........................ 7
SECTION 3.02 Representations and Warranties of TSC................................ 22
SECTION 3.03 Representations and Warranties of National Union..................... 24
SECTION 3.04 Representations and Warranties of O&G................................ 25
ARTICLE IV [INTENTIONALLY OMITTED]............................................................................... 27
ARTICLE V COVENANTS AND ADDITIONAL AGREEMENTS.................................................................... 27
SECTION 5.01 Pre-Closing Activities............................................... 27
SECTION 5.02 Covenants of the Company............................................. 27
SECTION 5.03 HSR.................................................................. 29
SECTION 5.04 [Intentionally Omitted].............................................. 29
SECTION 5.05 Stockholder Approvals; Proxy Statement............................... 29
SECTION 5.06 Stock Exchange Listing............................................... 30
SECTION 5.07 Transaction Proposals................................................ 31
SECTION 5.08 Access and Information............................................... 31
SECTION 5.09 Confidentiality and Publicity........................................ 33
SECTION 5.10 Restrictions......................................................... 33
SECTION 5.11 Further Assurances................................................... 33
SECTION 5.12 Directors' and Officers' Indemnification and Insurance............... 34
SECTION 5.13 Shareholders Agreement............................................... 34
ARTICLE VI CONDITIONS PRECEDENT.................................................................................. 34
SECTION 6.01 Conditions to Each Party's Obligations............................... 35
SECTION 6.02 Conditions to the Obligations of the Company......................... 35
SECTION 6.03 Conditions to the Obligations of Purchasers.......................... 37
ARTICLE VII TERMINATION.......................................................................................... 41
SECTION 7.01 Termination.......................................................... 41
SECTION 7.02 Effect of Termination................................................ 43
SECTION 7.03 Termination by One Purchaser......................................... 43
ARTICLE VIII INDEMNIFICATION..................................................................................... 44
SECTION 8.01 Indemnification of Purchasers........................................ 44
SECTION 8.02 Indemnification Procedures........................................... 45
SECTION 8.03 Survival of Representations, Warranties and Covenants................ 45
ARTICLE IX MISCELLANEOUS......................................................................................... 45
SECTION 9.01 Severability......................................................... 46
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SECTION 9.02 Specific Enforcement................................................. 46
SECTION 9.03 Entire Agreement..................................................... 46
SECTION 9.04 Counterparts......................................................... 46
SECTION 9.05 Notices.............................................................. 46
SECTION 9.06 Amendments........................................................... 48
SECTION 9.07 Successors and Assigns............................................... 48
SECTION 9.08 Expenses and Remedies................................................ 48
SECTION 9.09 Transfer of Shares................................................... 49
SECTION 9.10 Governing Law; Consent to Jurisdiction............................... 50
SECTION 9.11 Third Party Beneficiaries............................................ 50
SECTION 9.12 Mutual Drafting...................................................... 50
SECTION 9.13 Further Representations.............................................. 51
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THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated
as of February 5, 2000, is entered into between Xxxxx-Xxxxxx Corporation, a
California corporation ("TSC"), O&G Industries, Inc., a Connecticut corporation
("O&G"), and the National Union Fire Insurance Company of Pittsburgh, PA, a
Pennsylvania corporation ("National Union") and, collectively with TSC and O&G,
the "Purchasers"), and Perini Corporation, a Massachusetts corporation (the
"Company").
R E C I T A L S
WHEREAS, the Company is engaged primarily in the construction
business; and
WHEREAS, Purchasers propose to invest $40 million in the
Company in order to mitigate the continuing effects of the Company's negative
net worth on its business and financial condition; and
WHEREAS, the Company wishes to sell, and Purchasers wish to
purchase (severally but not jointly), an aggregate of 9,411,765 newly issued
shares of common stock, par value $1.00, of the Company (the "Common Stock"),
each for the consideration and upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
The terms defined in this Article I, whenever used in this
Agreement, shall have the following meanings for all purposes of this Agreement:
1.01 "Affiliate" has the meaning set forth in Rule 12b-2 under
the Exchange Act.
1.02 "Articles of Organization" means the Articles of
Organization of the Company as filed with the Office of the Secretary of State
for the Commonwealth of Massachusetts, as amended, restated or supplemented from
time to time.
1.03 "Balance Sheet" is defined in Section 3.01(g).
1.04 "Benefit Arrangement" means any benefit arrangement,
obligation, or practice, whether or not legally enforceable, to provide benefits
(other than merely as salary or under a Benefit Plan), as compensation for
services rendered, to present or former directors, employees, agents, or
independent contractors, including, but not limited to, employment or consulting
agreements, severance agreements or pay policies, executive or incentive
compensation programs or arrangements, sick leave, vacation pay, plant closing
benefits, salary
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continuation for disability, workers' compensation, retirement, deferred
compensation, bonus, stock option or purchase, tuition reimbursement or
scholarship programs, employee discount programs, any plans subject to Section
125 of the Code, and any plans providing benefits or payments in the event of a
change of control, change in ownership or effective control, or sale of a
substantial portion (including all or substantially all) of the assets of any
business or portion thereof, in each case with respect to any present or former
employees, directors, or agents.
1.05 "Benefit Plan" means an employee benefit plan as defined
in Section 3(3) of ERISA, together with plans or arrangements that would be so
defined if they were not (i) otherwise exempt from ERISA by that or another
section, (ii) maintained outside the United States, or (iii) individually
negotiated or applicable to only one person.
1.06 "Board" means the Board of Directors of the Company.
1.07 "Business Day" has the meaning specified in Rule
14d-1(e)(6) of the Exchange Act.
1.08 "By-Laws" is defined in Section 3.01(a).
1.09 "By-Law Amendment" is defined in Section 6.03(d).
1.10 "Closing" is defined in Section 2.02.
1.11 "Closing Date" is defined in Section 2.02.
1.12 "Common Stock" is defined in the third recital.
1.13 "Company" is defined in the first paragraph of this
Agreement.
1.14 "Company Benefit Arrangement" means any Benefit
Arrangement any Related Employer sponsors or maintains or with respect to which
any Related Employer has or may have any current or future liability (whether
actual, contingent, with respect to any of its assets or otherwise) , in each
case with respect to any present or former service providers to any Related
Employer.
1.15 "Company Plan" means any Benefit Plan that any Related
Employer maintains or has maintained or to which any Related Employer is
obligated to make payments or has or may have any liability, in each case with
respect to any present or former employees of any Related Employer.
1.16 "Company Intellectual Property" is defined in Section
3.01(s).
1.17 "Credit Facility" is defined in Section 6.03(g).
1.18 "Disclosure Schedule" means the Disclosure Schedule
attached hereto, which is divided by Section numbers corresponding with
specificity to the Sections hereof and discloses all matters which are
inconsistent with the representations set forth in Section 3.01.
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1.19 "Disinterested Majority" means the affirmative vote of a
majority of the outstanding voting power of the Company's Common Stock, voting
as a single class, excluding any stockholder that is or is an Affiliate of
either (i) a Purchaser or (ii) a holder of Series B Preferred Stock that is
exchanging its shares of such stock for Common Stock as contemplated by Section
6.03(c).
1.20 "Environmental Laws" means the laws of all Governmental
Entities relating to health or pollution or protection of the environment or
contained in any binding and enforceable regulation, code, plan, order, decree
or judgment issued, entered, promulgated or approved thereunder.
1.21 "Environmental Subsidiary" means Perini Environmental
Services, Inc.
1.22 "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and all regulations and rules issued thereunder, or any
successor law.
1.23 "ERISA Affiliate" means any person or entity that,
together with the entity referenced and at the relevant time, would be treated
as a single employer under Code Section 414 or ERISA Section 4001 (including any
entities excluded from the definition because they are not subject to U.S.
jurisdiction) and any general partnership of which such entity is or has been a
general partner.
1.24 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
1.25 "Filed Company SEC Documents" is defined in Section
3.01(f).
1.26 "GAAP" means United States generally accepted accounting
principles in effect from time to time.
1.27 "Government Entity" means any foreign, federal, state, or
local court or tribunal or administrative, governmental or regulatory body,
agency, commission, division, department, public body or other authority.
1.28 "Hazardous Material" means any substance that has been
designated by any Governmental Entity or by applicable federal, state, local or
other applicable law to be radioactive, toxic, hazardous or otherwise a danger
to health or the environment, including, without limitation, PCBs, asbestos,
petroleum, urea-formaldehyde and all substances listed as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to
the United States Resource Conservation and Recovery Act of 1976, as amended,
and the regulations promulgated pursuant to said laws, but excluding office and
janitorial supplies properly and safely maintained.
1.29 "HSR Act" is defined in Section 3.01(c).
1.30 "Indemnifiable Losses" means any and all direct or
indirect demands, claims, payments, obligations, actions or causes of action,
assessments, losses, liabilities, fines,
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damages, costs or expenses paid or incurred, of any kind or character (whether
or not known or asserted before the date of this Agreement, fixed or unfixed,
conditional or unconditional, xxxxxx or inchoate, liquidated or unliquidated,
secured or unsecured, accrued, absolute, contingent, or otherwise).
Indemnifiable Losses shall include penalties, interest, or any amount payable to
a third party as a result of such Indemnifiable Losses. Indemnifiable Losses
shall include legal, accounting, expert and other expenses reasonably incurred
in connection with investigating or defending any of the foregoing, whether or
not resulting in any liability, and all amounts paid in settlement of claims or
actions in accordance with Article VIII.
1.31 "Indemnification Agreements" is defined in Section
5.12(b).
1.32 "Intellectual Property" means trademarks, trade names,
trade dress, service marks, copyrights, domain names, and similar rights
(including registrations and applications to register or renew the registration
of any of the foregoing), patents and patent applications, trade secrets, ideas,
inventions, improvements, practices, processes, formulas, designs, know-how,
confidential business or technical information, computer software, firmware,
data and documentation, licenses of or agreements relating to any of the
foregoing, rights of privacy and publicity, moral rights, and any other similar
intellectual property rights and tangible embodiments of any of the foregoing
(in any medium including electronic media).
1.33 "Issuance" is defined in Section 5.05.
1.34 "Knowledge of the Company" means to the actual knowledge
of (i) any executive officer or director of the Company or any Subsidiary of the
Company or (ii) Xxxxxx Band, Xxxxxx X. Tutor, Xxxxxx X. Xxxx, Xxxxxx X.
Xxxxxxxxxx, Xxxxx X. Xxxx, Xxxxxxx X. Xxxxxx or Xxxxx X. Xxxxxxx.
1.35 "Lien" is defined in Section 3.01(c).
1.36 "Management Agreement Amendment" is defined in Section
6.01(d).
1.37 "Material Adverse Effect" on or with respect to a Person
(or group of entities taken as a whole) means any state of facts, event or
effect that individually (or in aggregate with all other states of facts, events
and effects) has had, or would reasonably be expected to have, a material
adverse change in the business, properties, prospects, results of operations or
financial condition of such Person (or, if applicable, of such group of Persons
taken as a whole), or on the ability of such entity (or group of Persons) to
consummate the transactions contemplated hereby or to perform its obligations
under the Transaction Documents to which it is or will be a party or by which it
or its properties or assets is or will be bound.
1.38 "Multiemployer Plan" means any plan described in ERISA
Section 3(37).
1.39 "Outside Date" is defined in Section 7.01(b)(i).
1.40 "Owned Intellectual Property" is defined in Section
3.01(s).
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1.41 "Pension Plan" means any plan subject to Code Section 412
or ERISA Section 302 or Title IV (excluding any Multiemployer Plan) or any
comparable benefit plan not covered by ERISA.
1.42 "Permit" is defined in Section 3.01(c)(i).
1.43 "Permitted Liens" means those Liens (i) securing debt
(including, without limitation, the Credit Facility) that is reflected on the
Balance Sheet or the notes thereto, (ii) referred to in Section 3.01(g) of the
Disclosure Statement, (iii) for Taxes not yet due or payable or being contested
in good faith and for which adequate reserves have been established in
accordance with GAAP, (iv) that constitute mechanics', carriers', workmens' or
like liens, liens arising under original purchase price conditional sales
contracts and equipment leases with third parties entered into in the ordinary
course, or (v) Liens incurred or deposits made in the ordinary course of
business consistent with past practice in connection with workers' compensation,
unemployment insurance and social security, retirement and other legislation and
in the case of Liens described in clauses (ii), (iii), (iv) or (v) that would
not have a Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole.
1.44 "Person" means and includes an individual, a partnership,
a joint venture, a corporation, a trust, limited liability company, an
unincorporated organization, a Government Entity or any other organization or
entity.
1.45 "Proxy Statement" is defined in Section 5.05.
1.46 "Purchase Price" is defined in Section 2.01.
1.47 "Purchasers" is defined in the first paragraph of this
Agreement.
1.48 "Qualified Plan" means any Company Plan intended to meet
the requirements of Section 401(a) of the Code, including any previously
terminated plan.
1.49 "Registration Rights Agreement" is defined in Section
6.02(c)(i).
1.50 "Related Employer" means the Company and every ERISA
Affiliate.
1.51 "Rights Agreement" means that certain Shareholder Rights
Agreement by and between the Company and State Street Bank and Trust Company,
dated as of September 23, 1988, as amended, restated and supplemented from time
to time.
1.52 "SEC" means the Securities and Exchange Commission.
1.53 "Securities Act" means the Securities Act of 1933, as
amended.
1.54 "Shareholders Agreement" is defined in Section
6.02(c)(ii).
1.55 "Shares" means the shares of Common Stock purchased
pursuant to this Agreement.
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1.56 "Stockholder Approvals" is defined in Section 5.05.
1.57 "Stockholder Meeting" is defined in Section 5.05.
1.58 "Stockholder Meeting Proposals" is defined in Section
5.05.
1.59 "Stock Purchase Warrants" is defined in Section 3.01(d).
1.60 "Subsidiary" means, with respect to the Company, any
corporation, limited or general partnership, joint venture, association, limited
liability company, joint stock company, trust, unincorporated organization, or
other entity analogous to any of the foregoing of which a majority of the equity
ownership (whether voting stock or comparable interest) is, at the time, owned
directly or indirectly by the Company. Subsidiary also means, with respect to
the Company, any such entity of which a minority of the equity ownership is, at
the time, owned directly or indirectly by the Company; provided, however, that,
in the case of such minority-owned entities, any representation or warranty that
is not already qualified to the Company's Knowledge shall be deemed to be so
qualified.
1.61 "Superior Transaction Proposal" is defined in Section
7.01(d).
1.62 "Transaction Documents" means this Agreement, the
Shareholders Agreement, the Registration Rights Agreement, the By-Law Amendment,
and the amendment to the Rights Agreement.
1.63 "Voting Security" means at any time shares of any class
of capital stock of the Company which are then entitled to vote generally in the
election of directors.
1.64 "Year 2000 Compatible" (and variations thereof) means,
with respect to any computer system, that such Computer System (a) records,
stores, processes and provides true and accurate dates and calculations for
dates and spans of dates, (b) is and will be able to operate on a basis
comparable to its current operation during and after calendar year 2000,
including, but not limited to, leap years, and (c) shall not end abnormally or
provide invalid or incorrect results as a result of date data which represents
or references (or fails to represent or reference) different centuries or more
than one century.
ARTICLE II
PURCHASE AND SALE OF SHARES
SECTION 2.01 Purchase and Sale of Shares. Upon the terms and
subject to the conditions set forth herein, the Company agrees to sell to
Purchasers and Purchasers agree (severally and not jointly) to purchase from the
Company 9,411,765 shares of Common Stock for an aggregate purchase price of $40
million (the "Purchase Price"). Each Purchaser shall purchase such number of
Shares as is set forth adjacent to its name on Exhibit 2.01 hereto; provided,
however, that Purchasers shall be entitled to amend Exhibit 2.01 (i) to change
the number of shares each of them is purchasing in their sole, joint discretion,
so long as the number
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of Shares to be purchased equals 9,411,765 and (ii) to reflect any assignment
permitted under Section 9.07.
SECTION 2.02 Time and Place of the Closing. The closing (the
"Closing") shall take place at the offices of Xxxxxxx, Procter & Xxxx, Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, at 10:00 a.m. Boston time, on the third
Business Day following the first date on which the conditions to Closing (other
than the conditions which may only be satisfied at Closing) set forth in Article
VI have first been satisfied or waived, or at such other place, time and date as
the parties may agree. The "Closing Date" shall be the date the Closing occurs,
and shall be effective as of 12:01 a.m. on the Closing Date, unless another date
is agreed to in writing by the Company and Purchasers.
SECTION 2.03 Transactions at the Closing. At the Closing,
subject to the terms and conditions of this Agreement, (a) the Company shall
issue and sell to Purchasers and Purchasers shall purchase the Shares; (b) the
Company and the Purchasers shall enter into the Shareholders Agreement; and (c)
the Company and Purchasers shall enter into the Registration Rights Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the Company.
The Company hereby represents and warrants to Purchasers, except as set forth on
the Disclosure Schedule or as disclosed in the Filed Company SEC documents, as
follows:
(a) Corporate Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of The
Commonwealth of Massachusetts. The Company is duly qualified or licensed and, if
applicable, is in good standing as a foreign corporation, in each jurisdiction
in which the properties owned, leased or operated, or the business conducted, by
it require such qualification or licensing, except for any such failure so to
qualify or be in good standing which would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
The Company has the requisite power and authority to carry on its business as it
is now being or is currently proposed to be conducted. The Company has
heretofore made available to Purchasers complete and correct copies of the
Articles of Organization and the Amended and Restated By-laws of the Company,
dated as of January 17, 1997 (the "By-Laws"), in each case as amended, restated
and supplemented.
(b) Corporate Authority. Subject to obtaining the Stockholders
Approvals, each of the Company and its Subsidiaries has (or will have at the
time of such act) the requisite corporate or other power and authority to
execute, deliver and perform each Transaction Document to which it is or will be
a party and to consummate the transactions contemplated thereby. The execution,
delivery and performance of each Transaction Document by the Company and the
consummation by the Company of the transactions contemplated hereby
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and thereby have been duly authorized (or will have been duly authorized at the
time of such act) by the Board, and no other corporate proceedings on the part
of the Company are necessary to authorize any Transaction Document or for the
Company to consummate the transactions so contemplated (other than as expressly
provided in the terms of this Agreement and, with respect to the Issuance, the
Stockholder Approvals). Each Transaction Document to which the Company is or
will be a party is, or when executed and delivered will be, a valid and binding
agreement of such party, enforceable against the Company in accordance with the
terms thereof, assuming that each Transaction Document to which the Company is a
party is a valid and binding agreement of the Purchasers (as applicable).
(c) No Violations; Consents and Approvals.
(i) Assuming that the Stockholder Approvals are
obtained and that the Credit Facility is amended as
contemplated in Section 6.03(g), the execution, delivery or
performance by the Company or any of its Subsidiaries of each
Transaction Document to which any of them is or will be a
party or the consummation by the Company or any of its
Subsidiaries of the transactions contemplated thereby (A) will
not result in a violation or breach of the Articles of
Organization or the By-laws, the articles or certificate of
incorporation or by-laws (or other organizational documents)
of any of the Subsidiaries and (B) subject to the governmental
filings and other matters referred to in clause (ii) below,
will not result in a violation or breach of (or give rise to
any right of termination, revocation, cancellation or
acceleration under or increased payments under), or constitute
a default (with or without due notice or lapse of time or
both) under, or result in the creation of any mortgage, lien,
charge, security interest or encumbrance of any kind (a
"Lien"), other than a Permitted Lien, upon any of the
properties or assets of the Company and its Subsidiaries under
(1) any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, contract, agreement, lease,
license, obligation, instrument, offer, commitment,
understanding or other arrangement (each a "Contract") or of
any license, waiver, exemption, order, franchise, permit or
concession (each a "Permit") to which the Company or any
Subsidiary is a party or by which any of their properties or
assets may be bound, or (2) any judgment, order, decree,
statute, law, regulation or rule applicable to the Company or
any Subsidiary.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
Securities Act, the Exchange Act, and the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act")
and filings under state securities or "blue sky" laws, and as
required by the American Stock Exchange, no consent, approval,
order or authorization of, or registration, declaration or
filing with, any government or any court, administrative
agency or commission or other governmental authority or
agency, federal, state or local or foreign (a "Governmental
Entity"), is required with respect to the Company or any of
its Subsidiaries in connection with the execution, delivery or
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performance by the Company and any Subsidiary of each
Transaction Document to which it is or will be a party or the
consummation by the Company and its Subsidiaries of the
transactions contemplated hereby and thereby (except where the
failure to obtain such consents, approvals, orders or
authorizations, or to make such registrations, declarations,
filings or agreements would not have a Material Adverse Effect
on the Company and the Subsidiaries, taken as a whole).
(d) Capital Stock. The authorized capital stock of the Company
consists of (i) 15,000,000 shares of Common Stock, par value $1.00 per share, of
which an aggregate of 5,682,287 shares of Common Stock were issued and
outstanding as of the close of business on January 14, 2000 and of which
4,135,094 shares of Common Stock were reserved for issuance upon the conversion
of the Series B Preferred Stock as of the close of business on January 14, 2000,
and (ii) 1,000,000 shares of preferred stock, $1.00 par value per share, of
which (1) 100,000 shares of $21.25 Convertible Exchangeable Preferred Stock (the
"$21.25 Preferred Stock") have been designated and 99,990 shares of which are
issued and outstanding as of the close of business on January 14, 2000; (2)
200,000 shares of Series A Junior Participating Preferred Stock have been
designated and none of which are issued or outstanding, as of the close of
business on January 14, 2000; and (3) 500,000 shares of Series B Cumulative
Convertible Preferred Stock (the "Series B Preferred Stock") have been
designated and 200,184 of which are issued and outstanding, as of the close of
business on January 14, 2000. As of the close of business on January 14, 2000,
there were outstanding under the Company's 1982 Stock Option Plan and certain
other Options granted on January 17, 1997, January 19, 1998, December 10, 1998
and January 4, 1999 (collectively, the "Company Stock Plans") options to acquire
an aggregate of 696,500 shares of Common Stock (subject to adjustment on the
terms set forth therein). As of the close of business on January 14, 2000, the
Company had no shares of Common Stock reserved for issuance, other than 916,610
shares of Common Stock reserved for issuance upon exercise of outstanding stock
options issued pursuant to the Company Stock Plans, 662,186 shares reserved for
issuance upon the conversion of the $21.25 Preferred Stock, 4,135,094 shares
reserved for issuance upon the conversion of the Series B Preferred Stock, and
420,000 shares reserved for issuance upon exercise of stock purchase warrants
(the "Stock Purchase Warrants"). As of the close of business on January 14,
2000, there were outstanding under the Company Stock Plans no shares of
restricted stock and no shares of Common Stock reserved for issuance of
restricted stock. All of the outstanding shares of Common Stock, $21.25
Preferred Stock and Series B Preferred Stock have been duly authorized and
validly issued, and are fully paid and nonassessable. There are no preemptive or
similar rights on the part of any holders of any class of securities of the
Company or of any of its Subsidiaries. Except for the Common Stock, the $21.25
Preferred Stock, the Series B Preferred Stock and the Stock Purchase Warrants,
as set forth above, the Company has outstanding no bonds, debentures, notes or
other obligations or securities the holders of which have the right to vote (or
are convertible or exchangeable into or exercisable for securities having the
right to vote) with the stockholders of the Company on any matter. Except as set
forth above and in the Rights Agreement, there are no securities convertible
into or exchangeable for, or options, warrants, calls, subscriptions, rights,
contracts, commitments, arrangements or understandings of any kind to which the
Company or any of its Subsidiaries is a party or by which any of them is bound
obligating the Company or any of its Subsidiaries contingently or otherwise to
issue, deliver or sell, or cause to be issued,
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delivered or sold, additional shares of capital stock or other voting securities
of the Company or of any of its Subsidiaries. Except for the Rights Agreement,
there are no outstanding Contracts of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of the
Company or of any of its Subsidiaries. Except for shares of Series B Preferred
Stock and shares to be issued in connection with this Agreement, all securities
of the Company have been registered under the Securities Act and applicable
state securities and blue sky law, or have been issued in reliance on an
exemption therefrom. Since January 14, 2000, the Company has not redeemed or
otherwise acquired any shares of its capital stock or issued any capital stock
(except upon exercise of options issued or agreed to be issued prior to the date
hereof under a Company Stock Plan and for payment of dividends to the holders of
Series B Preferred Stock) or any option, warrant or right relating thereto.
(e) Subsidiaries. Exhibit 21 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1998 as filed with the SEC (the
"Annual Report") is a true, accurate and correct statement of all of the
information required to be set forth in Exhibit 21 by the regulations of the SEC
as of the date of such report and as of the date of this Agreement. Each
Subsidiary has been duly incorporated or organized and is validly existing as a
corporation or other legal entity in good standing under the laws of the
jurisdiction of its incorporation or formation, has the corporate or other power
and authority to own, lease and operate its assets and properties and to conduct
its business as described in the Filed Company SEC Documents and as currently
owned or leased and conducted and is duly qualified to transact business as a
foreign corporation or other legal entity and is in good standing (if
applicable) in each jurisdiction in which the conduct of its business or its
ownership, leasing or operation of assets or property requires such
qualification, other than any failure to be so qualified or in good standing as
would not reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole. All of the outstanding capital
stock of each Subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and all capital stock of Subsidiaries owned by the
Company, directly or through Subsidiaries (other than directors' qualifying
shares), are free and clear of any Lien or restriction upon voting or transfer
of any kind (other than the pledge of all of the capital stock of the
Subsidiaries pursuant to the Credit Facility and such transfer restrictions as
may exist under federal and state securities laws), and there are no rights
granted to or in favor of any third party (whether acting in an individual,
fiduciary or other capacity) other than the Company to acquire any such capital
stock, any additional capital stock or any other securities of any Subsidiary.
(f) SEC Filings. The Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC under the Securities Act and the Exchange Act since January 1, 1993 and
up to the date hereof and it will file all such documents required to be filed
before the Closing (the "Filed Company SEC Documents"). As of its filing date,
each Filed Company SEC Document filed, as amended or supplemented, if
applicable, (i) complied in all respects with the applicable requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
thereunder and (ii) did not, at the time it was filed, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(g) Financial Statements. Each of the consolidated financial
statements (including, in each case, any related notes and schedules) contained
or to be contained in the Filed Company SEC Documents (i) complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, (ii) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by the SEC on Form 10-Q
under the Exchange Act) and (iii) fairly presented the consolidated financial
position of the Company and its Subsidiaries as of the respective dates thereof
and the consolidated results of its operations, stockholders' equity and cash
flows, in each case for the respective periods indicated, consistent with the
books and records of the Company and its Subsidiaries, except that the unaudited
interim financial statements are subject to normal year-end adjustments which
are not expected to be material in amount. The unaudited balance sheet of the
Company as of September 30, 1999 is referred to herein as the "Balance Sheet."
(h) Undisclosed Liabilities. Except (i) as disclosed in the
Filed Company SEC Documents or in any Section of the Disclosure Schedule, and,
in either case, reserved for in the Balance Sheet, and (ii) normal and recurring
liabilities incurred since the date of the Balance Sheet in the ordinary course
of business consistent with prior practices and not prohibited by the
Transaction Documents, the Company and its Subsidiaries do not have any
liabilities or obligations or any nature, whether known or unknown, whether
absolute, accrued, contingent or otherwise, and whether due or to become due,
which would reasonably be expected to have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole.
(i) Absence of Certain Events and Changes. Except as otherwise
contemplated by the Transaction Documents, since January 1, 1999, the Company
and its Subsidiaries have conducted their business in the ordinary course,
consistent with past practices, and there has not been any event, change or
development which would reasonably be expected to have a Material Adverse Effect
on the Company and its Subsidiaries, taken as a whole.
(j) Compliance with Applicable Laws. Each of the Company and
its Subsidiaries is in compliance with all statutes, laws, regulations, rules,
judgments, orders and decrees of all Governmental Entities applicable to it, and
neither the Company nor any of the Subsidiaries has received any notice alleging
noncompliance except, with reference to all the foregoing, where the failure to
be in compliance would not reasonably be expected to have a Material Adverse
Effect on the Company and its Subsidiaries, taken as a whole. Each of the
Company and its Subsidiaries has all Permits that are required in order to
permit it to carry on its business as it is presently conducted, except where
the failure to have such Permits would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
All such Permits are in full force and effect and the Company and its
Subsidiaries are in compliance with the terms of such Permits, except where the
failure to be in full force and effect or in compliance would not reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. This Section 3.01(j) does not relate to employee benefits
matters (for which Section 3.01(o) is applicable), environmental
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matters (for which Section 3.01(p) is applicable) or tax matters (for which
Section 3.01(n) is applicable).
(k) Title to Assets. The Company and the Subsidiaries have
title to all material properties (real and personal) owned by the Company and
the Subsidiaries which are necessary for the conduct of the business of the
Company and the Subsidiaries as described in the Filed Company SEC Documents and
as currently conducted, free and clear of any Lien that would reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. To the Company's Knowledge, all material properties held under
lease by the Company or the Subsidiaries are held under valid, subsisting and
enforceable leases. This Section 3.01(k) does not relate to Intellectual
Property (for which Section 3.01(s) is applicable).
(l) Litigation. There are no civil, criminal or administrative
actions, suits or proceedings pending or, to the Knowledge of the Company,
threatened, against the Company or any of its Subsidiaries that, if adversely
determined, would reasonably be expected to have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole. There are no outstanding
judgments, orders, decrees, or injunctions of any Governmental Entity against
the Company or any of its Subsidiaries that, would be reasonably expected to
have a Material Adverse Effect on the Company and its Subsidiaries, taken as a
whole.
(m) Contracts. All of the Company's Contracts that are
required to be described in the Filed Company SEC Documents or to be filed as
exhibits thereto are described in the Filed Company SEC Documents or filed as
exhibits thereto and are legal, valid, binding and in full force and effect
except to the extent that any failure to be enforceable would not reasonably be
expected to have a Material Adverse Effect on the Company and its Subsidiaries,
taken as a whole. There does not exist under any Contract any violation, breach
or event of default, or event or condition that, after notice or lapse of time
or both, would constitute a violation, breach or event of default thereunder, on
the part of the Company or any of the Subsidiaries or, to the Knowledge of the
Company, any other Person, other than such violations, breaches or events of
default as would not reasonably be expected to have a Material Adverse Effect on
the Company and its Subsidiaries, taken as a whole. The enforceability of all
Contracts will not be affected in any manner by the execution, delivery or
performance of any of the Transaction Documents or the consummation of the
transactions contemplated thereby, and no Contract contains any change in
control or other terms or conditions that will become applicable or inapplicable
as a result of the consummation of the transactions contemplated hereby or
thereby except for such effects as would not reasonably be expected to have a
Material Adverse Effect on the Company and its Subsidiaries, taken as a whole.
(n) Taxes.
(i) (A) All Tax Returns required to be filed by or on
behalf of each of the Company and the Subsidiaries have been
filed; (B) all such Tax Returns filed are complete and
accurate in all material respects, and all Taxes (whether or
not shown to be due on such Tax Returns) have been paid; (C)
neither the Company nor any of the Subsidiaries is currently
the beneficiary of any
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extension of time within which to file any such Tax Return;
(D) no written claim (other than a claim that has been finally
settled) has been made by a taxing authority that the Company
or any of the Subsidiaries is subject to an obligation to file
Tax Returns or to pay or collect Taxes imposed by any
jurisdiction in which such entity does not file Tax Returns or
pay or collect Taxes; and (E) all material assessments for
Taxes due with respect to completed and settled examinations
or concluded litigation have been paid. As used in this
Agreement, "Taxes" shall include all federal, state, local and
foreign income, franchise, property, sales, excise and other
taxes, tariffs or governmental charges of any nature
whatsoever, including interest and penalties, and additions
thereto; and "Tax Returns" shall mean all federal, state,
local and foreign tax returns, declarations, statements,
reports, schedules, forms and information returns relating to
Taxes.
(ii) The Company and each of the Subsidiaries has
duly and timely withheld all Taxes required to be withheld in
connection with its business and assets, and such withheld
Taxes have been either duly and timely paid to the proper
governmental authorities or properly set aside in accounts for
such purpose.
(iii) (A) Neither the Company nor any of the
Subsidiaries is a party to or bound by or has any obligation
under any Tax allocation, sharing, indemnification or similar
agreement or arrangement; and (B) neither the Company nor any
of the Subsidiaries is or has been at any time a member of any
group of companies filing a consolidated, combined or unitary
income tax return.
(iv) (A) All taxable periods of the Company and each
of the Subsidiaries ending on or before December 31, 1996 are
closed or no longer subject to audit; (B) neither the Company
nor any the Subsidiaries is currently under audit by any
taxing authority; (C) no waiver of the statute of limitations
is in effect with respect to any taxable year of the Company
or any of the Subsidiaries; and (D) correct and complete
copies of all income Tax Returns, examination reports and
statements of deficiencies assessed against or agreed to by
the Company or any Subsidiary since January 1, 1993 have been
made available to the Purchasers for their review.
(o) Employee Benefit Plans and Related Matters; ERISA.
(i) Schedule 3.01(o) contains a complete and accurate
list of all Company Plans and Company Benefit Arrangements.
Schedule 3.01(o) specifically identifies all Company Plans (if
any) that are Qualified Plans.
(ii) With respect, as applicable, to Benefit Plans
and Benefit Arrangements:
(A) the Company has made available true,
correct, and complete copies of the following documents with
respect to all Company Plans
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and Company Benefit Arrangements to the Purchasers: (1) all
current plan or arrangement documents, including but not
limited to trust agreements, insurance policies, service
agreements and formal and informal amendments to each; (2) the
most recent Forms 5500 or 5500C/R and any attached financial
statements and related actuarial reports, and those for the
prior three years; (3) the last Internal Revenue Service
("IRS") determination letter, the last IRS determination
letter that covered the qualification of the entire plan (if
different), and the materials submitted to obtain those
letters; (4) summary plan descriptions and summaries of
material modifications, and any prospectuses that describe the
Company Benefit Arrangements or Company Plans; (5) written
descriptions of all non-written agreements relating to any
such plan or arrangement; (6) all reports submitted within the
three years preceding the date of this Agreement by
third-party administrators, actuaries, investment managers,
consultants, or other independent contractors (other than
participant statements); (7) all notices that the IRS,
Department of Labor or any other governmental agency or entity
issued to the Seller within the four years preceding the date
of this Agreement; (8) employee manuals or handbooks
containing personnel or employee relations policies; (9) the
most recent quarterly listing of workers' compensation
claims and a schedule of workers' compensation claims of the
Seller for the last three fiscal years; and (10) any other
documents Purchasers has requested;
(B) the Qualified Plans qualify under Section
401(a) of the Code, and nothing has occurred with respect to
the operation of any Qualified Plan that could cause the
imposition of any liability, lien, penalty, or tax under ERISA
or the Code; each Company Plan and each Company Benefit
Arrangement has been maintained in accordance with its
constituent documents and with all applicable provisions of
domestic and foreign laws, including federal and state
securities laws and any reporting and disclosure requirements;
with respect to each Company Plan, no transactions prohibited
by Code Section 4975 or ERISA Section 406 and no breaches of
fiduciary duty described in ERISA Section 404 have occurred,
except to the extent that such transaction or breach would not
have a Material Adverse Effect on the Company and its
Subsidiaries, taken as a whole; and, to the Company's
Knowledge, no such transaction or breach has occurred; and no
Company Plan, other than the Company's employee stock
ownership plan, contains any security issued by any Related
Employer;
(C) with respect to each Pension Plan, (1) no Related
Employer has terminated or withdrawn (partially or fully) or
sought a funding waiver, and no facts exist that could
reasonably be expected to cause such actions; (2) no
accumulated funding deficiency (under Code Section 412) exists
or has existed; (3) no reportable event (as defined in ERISA
Section 4043) has occurred; (4) all costs have been provided
for on the basis of consistent methods in accordance with
sound actuarial assumptions and practices; (5) the assets, as
of its last valuation date, exceeded its "Benefit Liabilities"
(as defined in ERISA Section 4001(a)(16)); (6) since the last
valuation date, there have been no
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amendments or changes to increase the amounts of benefits and,
to the Knowledge of the Company, nothing has occurred that
would reduce the excess of assets over benefit liabilities in
such plans; and (7) no Related Employer has incurred liability
(other than for routine contributions not yet due) with
respect to any Multiemployer Plan nor terminated or withdrawn
(partially or fully) from any such Plan, and no facts exist
that could reasonably be expected to cause such result or
actions;
(D) there are no pending claims (other than
routine benefit claims) or lawsuits that have been asserted or
instituted by, against, or relating to, any Company Plans or
Company Benefit Arrangements, nor is there any basis for any
such claim or lawsuit. No Company Plans or Company Benefit
Arrangements are or have been under audit or examination (nor
has notice been received of a potential audit or examination)
by any domestic or foreign governmental agency or entity, and
no matters are pending with respect to any Company Plan under
the IRS's Employee Plans Compliance Resolutions System or any
successor or predecessor program;
(E) no Company Plan or Company Benefit
Arrangement contains any provision or is subject to any law
that would accelerate or vest any benefit or require
severance, termination or other payments or trigger any
liabilities as a result of the transactions this Agreement
contemplates; no Related Employer has declared or paid any
bonus or incentive compensation related to the transactions
this Agreement contemplates; and no payments under any Company
Plan or Company Benefit Arrangement would, individually or
collectively, be nondeductible under Code Section 280G;
(F) all reporting, disclosure, and notice
requirements of ERISA and the Code have been satisfied in all
material respects with respect to each Company Plan and each
Company Benefit Arrangement;
(G) each Related Employer has paid all
amounts it is required to pay as contributions to the Company
Plans as of the date of the Balance Sheet; all benefits
accrued under any unfunded Company Plan or Company Benefit
Arrangement will have been paid, accrued, or otherwise
adequately reserved in accordance with GAAP as of the date of
the Balance Sheet; and all monies withheld from employee
paychecks with respect to Company Plans have been transferred
to the appropriate plan within 30 days of such withholding;
(H) to the Knowledge of the Company, no
statement, either written or oral, has been made by the
Related Employers to any person with regard to any Company
Plan or Company Benefit Arrangement that was not in accordance
with the Company Plan or Company Benefit Arrangement and that
would involve a material increase in expense or liability
under such plan or arrangement;
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(I) the Related Employers have no liability
with respect to any Benefit Plan that should have been
sponsored or maintained by any ERISA Affiliate;
(J) all group health plans of the Related
Employers materially comply with the requirements of Part 6 of
Title I of ERISA ("COBRA"), Code Section 5000, and the Health
Insurance Portability and Accountability Act; the Related
Employers have no liability under or with respect to COBRA for
their own actions or omissions or those of any predecessor;
the Related Employers' voluntary employee beneficiary
association, if any, is exempt from tax and complies with all
requirements applicable to it; no employee or former employee
(or beneficiary of either) of a Related Employer is entitled
to receive any benefits, including, without limitation, death
or medical benefits (whether or not insured) beyond retirement
or other termination of employment , other than as applicable
law requires, and Seller has provided its method and
supporting documentation for any accounting charge it or the
Related Employers have calculated for such benefits;
(iii) Schedule 3.01(o) hereto contains the most
recent quarterly listing of workers' compensation claims and a
schedule of workers' compensation claims of the Company for
the last three (3) fiscal years.
(p) Environmental Matters.
(i) Hazardous Material. To the Knowledge of the
Company, no Hazardous Material has been released in, on or
under any property (including the land and the improvements,
ground water and surface water thereof) that the Company has
at any time owned, operated or leased. Schedule 3.01(p)
identifies all known underground and aboveground storage
tanks, and the capacity, age, and contents of such tanks,
located on real property owned or leased by the Company.
Except as listed on Schedule 3.01(p), no underground storage
tanks are currently located under any property owned, operated
or leased by the Company.
(ii) Hazardous Materials Activities. The Company has
not transported, stored, used, manufactured, disposed of or
released, or exposed its employees or others to, Hazardous
Materials in violation of any Environmental Law in effect on
or before the Closing Date, nor has the Company disposed of,
transported, sold, or manufactured any product containing a
Hazardous Material (collectively, "Company Hazardous Materials
Activities") in violation of any Environmental Law in effect
prior to or as of the date hereof and the Closing.
(iii) Permits. The Company currently holds all
environmental and health approvals, permits, licenses,
clearances and consents (the "Environmental Permits")
necessary for the conduct of the Company's Hazardous Material
Activities and other business of the Company as such
activities and business are currently being conducted. All
Environmental Permits are in full
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force and effect. The Company (x) is in compliance in all
material respects with all terms and conditions of the
Environmental Permits and (y) is in compliance in all material
respects with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules
and timetables contained in the Environmental Laws. To the
Company's Knowledge, there are no circumstances that may
prevent such compliance in the future. Schedule 3.01(p)
includes a listing and description of all Environmental
Permits currently held by the Company.
(iv) Environmental Liabilities. No action,
proceeding, revocation proceeding, amendment procedure, writ,
injunction or claim is pending, or, to the Knowledge of the
Company, threatened against the Company concerning any
Environmental Permit, Hazardous Material or any Company
Hazardous Materials Activity. There are no past or present
actions, activities, circumstances, conditions, events, or
incidents that are reasonably likely to involve the Company or
any of its Subsidiaries (or any person or entity whose
liability the Company or any of its Subsidiaries has retained
or assumed, either by contract or operation of law) in any
litigation under the Environmental Laws, or impose upon the
Company or any of its Subsidiaries (or any person or entity
whose liability the Company or any of its Subsidiaries has
retained or assumed, either by contract or operation of law)
any liability under the Environmental Laws material to the
Company and its Subsidiaries on a consolidated basis.
(v) Environmental Subsidiary. As to the
Environmental Subsidiary, in addition to the other
representations and warranties contained in this 3.01(p):
(A) The Environmental Subsidiary is not
listed as the generator of any Hazardous Material on any waste
manifest or other document prepared pursuant to the
Environmental Laws or by contract, and the Environmental
Subsidiary has not assumed, under the Environmental Laws or by
contract, the responsibilities or liabilities of the generator
of any Hazardous Material;
(B) To the Knowledge of the Company, the
Environmental Subsidiary has not performed any remedial action
taken pursuant to the Environmental Laws, where the remedial
action is not, or it is alleged in writing by any Person or
entity that the remedial action is not, constructed and
operating in accordance with the Environmental Laws or
contract; and
(C) There are no claims, actions, causes of
action, or other written notices pending or, to the Company's
Knowledge, threatened against the Environmental Subsidiary
under the Environmental Laws or contract, arising from the
Environmental Subsidiary's provision of materials or services
to any Person or entity, that are not subject to coverage
under the Environmental Subsidiary's insurance policies,
except where such claims, actions, causes of
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action or other written notice will not have a Material
Adverse Effect on the Environmental Subsidiary.
(q) Takeover Law. The Company has taken all action
necessary to ensure that the provisions of Chapter 110F of the Massachusetts
General Laws will not be applicable to Purchasers or their Affiliates as a
result of the transactions contemplated by the Transaction Documents.
(r) Status of Shares. Assuming the Stockholder
Approvals are obtained, the Shares to be issued at the Closing will have been
duly authorized by all necessary corporate action on the part of the Company,
and at Closing such Shares will have been validly issued and, assuming payment
therefor has been made, will be fully paid and nonassessable, and the issuance
of such Shares will not be subject to preemptive rights of any other stockholder
of the Company. Assuming the Stockholder Approvals have been obtained, the
Shares will be eligible for listing on the American Stock Exchange subject only
to notice of issuance.
(s) Intellectual Property.
(i) The Intellectual Property that is
owned by the Company and its Subsidiaries (the "Owned
Intellectual Property") constitutes all of the Intellectual
Property used, intended to be used or held for use in
connection with, necessary for the conduct of, or otherwise
material to the Company and the Subsidiaries, except for
Intellectual Property subject to written or oral licenses,
agreements or arrangements pursuant to which the use of
Intellectual Property by any Company or any Subsidiary is
permitted by any Person (the "Intellectual Property Licenses"
and, together with the Owned Intellectual Property, the
"Company Intellectual Property"). The Owned Intellectual
Property is owned free from any Liens (other than Permitted
Liens). All material Intellectual Property Licenses are in
full force and effect in accordance with their terms, and are
free and clear of any Liens (other than Permitted Liens).
Immediately after the Closing, the Company and the
Subsidiaries will own or have the right to use all the Company
Intellectual Property, in each case free from Liens (except
for Permitted Liens incurred in the ordinary course of
business) and on the same terms and conditions as in effect
prior to the Closing.
(ii) To the knowledge of the Company, the
conduct of the business of the Company and its Subsidiaries
does not infringe or conflict with the rights of any third
party in respect of any Intellectual Property. To the
Knowledge of the Company, none of the Company Intellectual
Property is being infringed by any third party. There is no
claim or demand of any Person pertaining to, or any proceeding
which is pending or, to the Knowledge of the Company,
threatened, that challenges the rights of the Company or any
of the Subsidiaries in respect of any Company Intellectual
Property, or that claims that any default exists under any
Intellectual Property License. None of the Company
Intellectual Property is subject to any outstanding order,
ruling, decree, judgment
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or stipulation by or with any court, tribunal, arbitrator, or
other Governmental Entity adverse to the Company.
(iii) The Owned Intellectual Property has
been duly registered with, filed in or issued by, as the case
may be, the appropriate filing offices, domestic or foreign,
to the extent necessary or desirable to ensure usual and
customary protection for Intellectual Property in the relevant
jurisdiction under any applicable law, and the same remain in
full force and effect. The Company and the Subsidiaries have
taken all necessary actions to ensure usual and customary
protection in the relevant jurisdiction of the Company
Intellectual Property (including maintaining the secrecy of
all confidential Intellectual Property) under any applicable
law or any Contract.
(t) Guarantees. Section 3.01(t) of the Disclosure
Schedule sets forth a description of any obligations or liabilities of any
person other than the Company or its Subsidiaries that are guaranteed by or
subject to a contingent obligation of the Company or any of its Subsidiaries.
(u) Labor Matters. With respect to employees of and
service providers to the Related Employers:
(i) the Related Employers are complying and
have complied in all material respects with all applicable
domestic and foreign laws respecting employment and employment
practices, terms and conditions of employment and wages and
hours, including without limitation any such laws respecting
employment discrimination, workers' compensation, family and
medical leave, the Immigration Reform and Control Act, and
occupational safety and health requirements, and no claims or
investigations are pending or, to the Knowledge of the
Company, threatened with respect to such laws, either by
private individuals or by governmental agencies;
(ii) no Related Employer is or has been
engaged in any unfair labor practice, and there is not now,
nor within the past three years has there been, any unfair
labor practice complaint against any Related Employer pending
or, to the Knowledge of the Company, threatened, before the
National Labor Relations Board or any other comparable foreign
or domestic authority or any workers' council;
(iii) no labor strike, lock-out, slowdown, or
work stoppage is or has been, within the last three years,
pending or, to the Knowledge of the Company, threatened
against or directly affecting any Related Employer; and
(iv) all persons who are or were performing
services for any Related Employer and are or were classified
as independent contractors do or did satisfy and have
satisfied the requirements of law to be so classified, and the
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appropriate Related Employer has fully and accurately reported
their compensation on IRS Forms 1099 when required to do so.
(v) Brokers or Finders. Other than Xxxxxxxx, no agent, broker,
investment banker or other firm is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by the Transaction Documents.
(w) Disclosure. To the Knowledge of the Company, no
representation or warranty by the Company contained in this Agreement or any of
the other Transaction Documents, or in any certificate to be furnished by or on
behalf of the Company pursuant hereto or thereto, contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein, in light of
the circumstances under which they were made, not misleading.
(x) Opinion of Independent Investment Banking Firm; Special
Committee. The Special Committee of the Board (the "Special Committee") has
obtained an opinion from Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital ("Houlihan"), in
a form satisfactory to the Special Committee, that the financial terms of the
transactions contemplated by the Transaction Documents are fair to the holders
of the Common Stock from a financial point of view. The Special Committee has
recommended the execution and performance of this Agreement to the full Board.
(y) Year 2000. The disclosure as to Year 2000 Compatibility
issues in the Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1999, is true and correct in all material respects and does not
omit to state a material fact necessary to make the statements contained therein
not misleading.
(z) No Illegal or Improper Transactions. Neither the Company
nor any Subsidiary has, nor has any director, officer, employee, agent or
affiliate of the Company or any Subsidiary, directly or indirectly, used funds
or other assets of the Company or any Subsidiary, or made any promise or
undertaking in such regard, for (i) illegal contributions, gifts, entertainment
or other expenses relating to political activity; (ii) illegal payments to or
for the benefit of governmental officials or employees, whether domestic or
foreign; (iii) illegal payments to or for the benefit of any Person, or any
director, officer, employee, agent, affiliate or representative thereof; or (iv)
the establishment or maintenance of a secret or unrecorded fund; and, to the
Knowledge of the Company, there have been no false or fictitious entries made in
the books or records of the Company or any Subsidiary.
(aa) Insurance.
(i) All insurance policies to which the
Company or any of the Subsidiaries is a party or that provide
coverage to any director or officer of the Company or of any
of the Subsidiaries (A) are valid, outstanding, and
enforceable, (B) are issued by an insurer that, to the
Knowledge of the Company, is financially sound and reputable,
(C) taken together provide adequate insurance
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for the properties, assets and business of the Company and the
Subsidiaries for all risks normally insured against by a
Person carrying on the same or similar business or businesses,
(D) comply with the insurance requirements of all laws and
contracts to which the Company and any of the Subsidiaries is
a party or by which it is bound, except where such failures to
so comply would not be reasonably likely to have a Material
Adverse Effect on the Company and the Subsidiaries, taken as a
whole, and (E) do not provide for any retrospective premium
adjustment or other experience-based liability on the part of
the Company or any of the Subsidiaries.
(ii) Neither the Company nor any Subsidiary
has received any refusal of coverage or any notice that a
defense will be afforded with reservation of rights, or any
notice of cancellation or any other indication that any
insurance policy is no longer in full force or effect or will
not be renewed or that the issuer of any policy is not willing
or able to perform its obligations thereunder, except where
such refusals, failures to renew or cancellations would not be
reasonably likely to have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole.
(iii) The Company and each of the
Subsidiaries has paid all premiums due with respect to all
periods up to and including the date hereof and has otherwise
performed all of its obligations under each policy to which
such Person is a party or that provides coverage to such
Person or any officers or directors thereof, except where the
failure to do so would not be reasonably likely to have a
Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole.
(iv) The Company and each Subsidiary has
given notice to the insurer of all material claims that may be
insured thereby.
SECTION 3.02 Representations and Warranties of TSC. TSC
represents and warrants as follows:
(a) Organization. TSC is a corporation validly existing and in
good standing under the laws of the jurisdiction of its organization, with all
requisite corporate power and authority to own, lease and operate its assets and
properties and to conduct its business as now being conducted.
(b) Corporate Authority. TSC has (or will have at the time of
such act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a party
and to consummate the transactions contemplated thereby. The execution, delivery
and performance of each Transaction Document by TSC and the consummation by TSC
of the transactions contemplated hereby and thereby have been duly authorized
(or will have been duly authorized at the time of such act) and no other
corporate proceedings on the part of TSC are necessary to authorize any
Transaction Document or for TSC to consummate the transactions so contemplated.
Each Transaction Document to
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which TSC is or will be a party is, or when executed and delivered will be, a
valid and binding agreement of such party, enforceable against TSC in accordance
with the terms thereof, assuming that each Transaction Document to which TSC is
a party is a valid and binding agreement of the Company and each other Purchaser
(as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
TSC of each Transaction Document to which it is or will be a
party or the consummation by TSC of the transactions
contemplated thereby (A) will not result - in a violation or
breach of its articles or certificate of incorporation or
by-laws (or other organizational documents) or (B) subject to
the governmental filings and other matters referred - to in
clause (ii) below, will not result in a violation or breach of
(or give rise to any right of termination, revocation,
cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice or
lapse of time or both) under, or result in the creation of any
Lien upon any of the properties or assets of TSC or the
Company and its Subsidiaries under any judgment, order,
decree, statute, law, regulation or rule applicable to TSC.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to TSC in connection with the
execution, delivery or performance by TSC of each Transaction
Document to which it is or will be a party or the consummation
by TSC of the transactions contemplated hereby and thereby
(except where the failure to obtain such consents, approvals,
orders or authorizations, or to make such registrations,
declarations, filings or agreements would not have a Material
Adverse Effect on TSC).
(d) Acquisition for Investment. TSC is acquiring the Shares
being purchased by it for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and TSC
has no present intention or plan to effect any distribution of Shares; provided
that the disposition of TSC's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the Registration
Rights Agreement. TSC is an "Accredited Investor" within the meaning of Rule
501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from TSC in connection with any of the transactions
contemplated by the Transaction Documents.
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(f) Proxy Statement. The information to be supplied by TSC for
inclusion in the Proxy Statement shall not, on the date the Proxy Statement (or
any amendment thereof or supplement thereto) is first mailed to stockholders of
the Company and at the time of the Stockholder Meeting, contain any statement
which, at such time and in light of the circumstances under which it shall be
made, is false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make such statements made in Proxy
Statement not false or misleading. If at any time prior to Stockholder Meeting
any event relating to TSC or any of its Affiliates, officers or directors should
be discovered by TSC which should be set forth in a Supplement to the Proxy
Statement, TSC shall promptly inform the Company.
SECTION 3.03 Representations and Warranties of National Union. National
Union represents and warrants as follows:
(a) Organization. National Union is a corporation validly
existing and in good standing under the laws of the jurisdiction of its
organization, with all requisite power and authority to own, lease and operate
its properties and to conduct its business as now being conducted.
(b) Authority. National Union has (or will have at the time of
such act) the requisite corporate or other power and authority to execute,
deliver and perform each Transaction Document to which it is or will be a party
and to consummate the transactions contemplated thereby. The execution, delivery
and performance of each Transaction Document by National Union and the
consummation by National Union of the transactions contemplated hereby and
thereby have been duly authorized (or will have been duly authorized at the time
of such act) and no other proceedings on the part of National Union are
necessary to authorize any Transaction Document or for National Union to
consummate the transactions so contemplated. Each Transaction Document to which
National Union is or will be a party is, or when executed and delivered will be,
a valid and binding agreement of such party, enforceable against National Union
in accordance with the terms thereof, assuming that each Transaction Document to
which National Union is a party is a valid and binding agreement of the Company
and each other Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
National Union of each Transaction Document to which it is or
will be a party or the consummation by National Union of the
transactions contemplated thereby (A) will not result in a
violation or breach of its articles or certificate of
incorporation or by-laws (or other organizational documents)
or (B) subject to the governmental filings and other matters
referred to in clause (ii) below, will not result in a
violation or breach of (or give rise to any right of
termination, revocation, cancellation or acceleration under or
increased payments under), or constitute a default (with or
without due notice or lapse of time or both) under, or result
in the creation of any Lien upon any of the properties or
assets of National Union or the Company and its Subsidiaries
under any judgment, order, decree, statute, law, regulation or
rule applicable to National Union.
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(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to National Union in
connection with the execution, delivery or performance by
National Union of each Transaction Document to which it is or
will be a party or the consummation by National Union of the
transactions contemplated hereby and thereby (except where the
failure to obtain such consents, approvals, orders or
authorizations, or to make such registrations, declarations,
filings or agreements would not have a Material Adverse Effect
on National Union).
(d) Acquisition for Investment. Except as contemplated by
Section 9.07, National Union is acquiring the Shares being purchased by it for
its own account for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof, and National Union has no present
intention or plan to effect any distribution of Shares; provided that the
disposition of National Union's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the Registration
Rights Agreement. National Union is an "Accredited Investor" within the meaning
of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from National Union in connection with any of the
transactions contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by
National Union for inclusion in the Proxy Statement shall not, on the date the
Proxy Statement (or any amendment thereof or supplement thereto) is first mailed
to stockholders of the Company and at the time of the Stockholder Meeting,
contain any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make
such statements made in Proxy Statement not false or misleading. If at any time
prior to Stockholder Meeting any event relating to National Union or any of its
Affiliates, officers or directors should be discovered by National Union which
should be set forth in a Supplement to the Proxy Statement, National Union shall
promptly inform the Company.
SECTION 3.04 Representations and Warranties of O&G. O&G represents and
warrants as follows:
(a) Organization. O&G is a corporation validly existing and in
good standing under the laws of the jurisdiction of its organization, with all
requisite power and authority to own, lease and operate its properties and to
conduct its business as now being conducted.
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(b) Authority. O&G has (or will have at the time of such act)
the requisite corporate or other power and authority to execute, deliver and
perform each Transaction Document to which it is or will be a party and to
consummate the transactions contemplated thereby. The execution, delivery and
performance of each Transaction Document by O&G and the consummation by O&G of
the transactions contemplated hereby and thereby have been duly authorized (or
will have been duly authorized at the time of such act) and no other corporate
proceedings on the part of O&G are necessary to authorize any Transaction
Document or for O&G to consummate the transactions so contemplated. Each
Transaction Document to which O&G is or will be a party is, or when executed and
delivered will be, a valid and binding agreement of such party, enforceable
against O&G in accordance with the terms thereof, assuming that each Transaction
Document to which O&G is a party is a valid and binding agreement of the Company
and each other Purchaser (as applicable).
(c) No Violations; Consents and Approvals.
(i) The execution, delivery or performance by
O&G of each Transaction Document to which it is or will be a
party or the consummation by O&G of the transactions
contemplated thereby (A) will not result in a violation or
breach of its articles or certificate of incorporation or
by-laws (or other organizational documents) or (B) subject to
the governmental filings and other matters referred to in
clause (ii) below, will not result in a violation or breach of
(or give rise to any right of termination, revocation,
cancellation or acceleration under or increased payments
under), or constitute a default (with or without due notice or
lapse of time or both) under, or result in the creation of any
Lien upon any of the properties or assets of O&G or the
Company and its Subsidiaries under any judgment, order,
decree, statute, law, regulation or rule applicable to O&G.
(ii) Except for consents, approvals, orders,
authorizations, registrations, declarations or filings as may
be required under, and other applicable requirements of, the
HSR Act (and filings after the Closing, if any, under
Regulation D, Section 13(d) and/or Section 16 of the Exchange
Act), no consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental
Entity is required with respect to O&G in connection with the
execution, delivery or performance by O&G of each Transaction
Document to which it is or will be a party or the consummation
by O&G of the transactions contemplated hereby and thereby
(except where the failure to obtain such consents, approvals,
orders or authorizations, or to make such registrations,
declarations, filings or agreements would not have a Material
Adverse Effect on O&G).
(d) Acquisition for Investment. O&G is acquiring the Shares
being purchased by it for its own account for the purpose of investment and not
with a view to or for sale in connection with any distribution thereof, and O&G
has no present intention or plan to effect any distribution of Shares; provided
that the disposition of O&G's property shall at all times be and remain within
its control and subject to the provisions of this Agreement and the
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Registration Rights Agreement. O&G is an "Accredited Investor" within the
meaning of Rule 501(a) of Regulation D under the Act.
(e) Brokers or Finders. No agent, broker, investment banker or
other firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from O&G in connection with any of the transactions
contemplated by the Transaction Documents.
(f) Proxy Statement. The information to be supplied by O&G for
inclusion in the Proxy Statement shall not, on the date the Proxy Statement (or
any amendment thereof or supplement thereto) is first mailed to stockholders of
the Company and at the time of the Stockholder Meeting, contain any statement
which, at such time and in light of the circumstances under which it shall be
made, is false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make such statements made in Proxy
Statement not false or misleading. If at any time prior to Stockholder Meeting
any event relating to O&G or any of its Affiliates, officers or directors should
be discovered by O&G which should be set forth in a Supplement to the Proxy
Statement, O&G shall promptly inform the Company.
ARTICLE IV
[INTENTIONALLY OMITTED]
ARTICLE V
COVENANTS AND ADDITIONAL AGREEMENTS
SECTION 5.01 Pre-Closing Activities. From and after the date of this
Agreement until the Closing, each of the Company and Purchasers shall act with
good faith towards each other, and shall use all commercially reasonable efforts
to take or cause to be taken all actions necessary, proper or advisable to
consummate the transactions contemplated by the Transaction Documents and
neither the Company nor any Purchaser will take any action that would prohibit
or materially impair its ability to consummate the transactions contemplated by
the Transaction Documents.
SECTION 5.02 Covenants of the Company. During the period from the date
of this Agreement and continuing until the Closing, the Company agrees as to
itself and the Subsidiaries that, except as provided in Section 5.02 of the
Disclosure Schedule, or to the extent that Purchasers otherwise consent in
writing:
(a) Ordinary Course. The Company will conduct its business in
the ordinary course in substantially the same manner as presently conducted and
the Company will use commercially reasonable efforts to keep available the
services of the current officers and employees and to preserve the relationships
with customers, suppliers and others having business dealings with the Company.
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(b) Other Transactions. The Company will not, nor will it
permit any of the Subsidiaries to, do any of the following (except as otherwise
specifically contemplated herein or in any other Transaction Document):
(i) amend its Articles of Organization,
By-laws or other organizational documents (except for
immaterial amendments to the Articles of Organization or
By-laws of any Subsidiaries, provided such amendments in no
way materially and adversely affect Purchasers or the rights
granted or to be granted to the Purchasers under any
Transaction Document);
(ii) declare or pay any cash or non-cash
dividend or make any cash or non-cash distribution with
respect to any securities of the Company (other than payment
of dividends in kind pursuant to the Series B Preferred
Stock);
(iii) redeem or otherwise acquire any shares
of its capital stock or issue any capital stock (except upon
exercise of options issued or agreed to be issued prior to the
date hereof under a Company Stock Plan) or any option, warrant
or right relating thereto;
(iv) incur any liabilities, obligations or
indebtedness for borrowed money or guarantee any such
liabilities, obligations or indebtedness, other than in the
ordinary course of business consistent with past practice and
as permitted under the Credit Facility;
(v) permit, allow or suffer any assets or
properties of the Company to be subject to any Lien other than
Permitted Liens;
(vi) guarantee or otherwise become
contingently liable for any obligation of any third party
other than in the ordinary course of business;
(vii) make any change in any method of
accounting or accounting practice or policy, except as may be
required by GAAP;
(viii) enter into any agreement or take any
action in violation of the terms of this Agreement or any of
the other Transaction Documents;
(ix) settle any material tax audit, make or
change any tax election or amend any Tax Returns; or
(x) agree, whether in writing or otherwise,
to do any of the foregoing.
(c) Employee Benefits. Except in the ordinary course of
business and consistent with past practice (which shall include normal periodic
performance reviews and related benefit increases and the increases approved at
the December 8, 1999 meeting of the Board of Directors) or pursuant to the
existing terms of any collective bargaining agreement, the Company will not, nor
will it permit any of the Subsidiaries to (i) increase in any manner the
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compensation of any of the officers or other employees of the Company or its
Subsidiaries; (ii) adopt, amend, terminate, or increase liability with respect
to any Company Plan or Company Benefit Arrangement or commit to do so; or (iii)
enter into, or negotiate, any collective bargaining agreement with respect to
employees of the Company or its Subsidiaries except as required by law, in which
case the Company or such Subsidiary shall first notify Purchasers.
SECTION 5.03 HSR. Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties agrees to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable to
consummate and make effective all necessary filings required pursuant to the HSR
Act as soon as commercially practicable after the date of this Agreement, and
shall use their best efforts to obtain the early termination of the waiting
period thereunder, provided that neither the Company nor any Purchaser shall be
required to agree to dispose of or hold separate any material portion of its
business or assets.
SECTION 5.04 [Intentionally Omitted]
SECTION 5.05 Stockholder Approvals; Proxy Statement.
(a) The Company shall call a meeting of its stockholders (the
"Stockholder Meeting") for the purpose, among others, of obtaining stockholder
approvals for: (i) an amendment to the Articles of Organization increasing the
number of authorized shares of Common Stock to at least as many shares of Common
Stock as are necessary to consummate the transaction contemplated hereby and
(ii) the issuance and sale (the "Issuance") of the Shares to Purchasers and the
exchange of the Series B Preferred Stock for shares of Common Stock as
contemplated by Section 6.03(c) (the "Stockholder Meeting Proposals"). The
Stockholder Meeting shall be held as soon as practicable but in no event later
than the Outside Date. For purposes of this Agreement, "Stockholder Approvals"
shall mean, as to clause (i), the affirmative vote of the holders of a majority
of the shares of the Equity Securities entitled to vote thereon and, as to
clause (ii), the affirmative vote of the holders of a Disinterested Majority of
the Equity Securities entitled to vote thereon. Where so required by applicable
Massachusetts law or the Articles of Organization, Stockholder Approvals shall
mean the separate vote of each class of stock entitled to vote thereon.
(b) The Company will prepare and file with the SEC a proxy
statement relating to the Stockholder Meeting (as amended or supplemented and
including documents incorporated by reference therein, the "Proxy Statement")
and shall use its reasonable best efforts to respond to any comments of the SEC
or its staff and to cause the Proxy Statement to be cleared by the SEC. The
Company shall notify Purchasers of the receipt of any comments from the SEC or
its staff and of any request by the SEC or its staff for amendments or
supplements to the Proxy Statement or for additional information and shall
supply Purchasers and their counsel with copies of all correspondence between
the Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Proxy Statement. The Company shall
give Purchasers and their counsel the opportunity to review the Proxy Statement
prior to its being filed with the SEC and shall give Purchasers and their
counsel the opportunity to review all amendments and supplements to the Proxy
Statement and all responses to requests
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for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Purchasers agrees to use
reasonable best efforts, after consultation with the other party hereto, to
respond promptly to all such comments of and requests by the SEC. After the
Proxy Statement has been cleared by the SEC, the Company shall mail the Proxy
Statement to the stockholders of the Company. If at any time prior to the
Stockholder Meeting there shall occur any event that should be set forth in an
amendment or supplement to the Proxy Statement, the Company will prepare and
mail to its stockholders such an amendment or supplement.
(c) The Proxy Statement will not, at the date mailed to the
Company's stockholders and at the date of the Stockholder Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The Proxy
Statement will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder, except that no
representation is made by the Company with respect to statements made therein as
to information concerning Purchasers or their Affiliates supplied in writing by
Purchasers or any of their Affiliates specifically for inclusion in the Proxy
Statement.
(d) Unless this Agreement has been terminated (i) pursuant to
Section 7.01(d)(ii) (based upon a failure of the condition set forth in Section
6.02(d)), or (ii) pursuant to Section 7.01(d)(iii) based upon the existence of a
Superior Transaction Proposal that the Board intends to accept, the Board and
the Special Committee shall recommend that the Company's stockholders approve
the Stockholder Meeting Proposals and the Company shall use its best efforts to
obtain the necessary approvals by its stockholders of the Stockholder Meeting
Proposals.
SECTION 5.06 Stock Exchange Listing. The Company shall use its
commercially reasonable efforts to cause Purchasers to receive, prior to
Closing, assurance from the American Stock Exchange (the "Exchange"), in a form
reasonably satisfactory to the Purchasers, that: (a) in accordance with the
rules of the Exchange, all Shares will be eligible for listing on the Exchange;
and (b) consummation of the transactions contemplated herein or in any other
Transaction Document will not cause any securities of the Company already listed
on the American Stock Exchange to lose their listing privileges.
SECTION 5.07 Transaction Proposals.
(a) For purposes of this Agreement, "Transaction Proposal"
means any inquiry, proposal or offer from any Person (other than a Person that
is an Affiliate of the Purchasers) relating to (i) any purchase or other
acquisition from the Company of assets representing 20% or more of the net
revenues, net income or profits of the Company and its Subsidiaries, taken as a
whole, (ii) any purchase or other acquisition of any class of securities of the
Company for a purchase price in excess of $20 million, or (iii) any merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company (or any subsidiary whose business
constitutes 20% or more of the net revenues, net income or assets of the Company
and its subsidiaries, taken as a whole). For purposes of this
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Section 5.07, separate Transaction Proposals by Affiliates or by Persons in a
"group" (as defined in the rules promulgated under Section 13 of the Exchange
Act), as well as separate Transaction Proposals that are adopted by the Company
as part of a plan of financing or capitalizing the Company shall be aggregated
and treated as a single proposal for purposes of determining whether such
proposal or proposals exceed the thresholds set forth in this Section 5.07(a).
(b) At least ten (10) days prior to either (x) accepting any
Transaction Proposal or (y) any change by the Board or the Special Committee in
their respective recommendations concerning the Stockholder Meeting Proposals
(if following the receipt of any Transaction Proposal), the Company shall advise
Purchasers orally and in writing of such Transaction Proposal and the material
terms and conditions of such Transaction Proposal and the identity of the Person
making any such Transaction Proposal. During such ten day period, the Company
shall negotiate in good faith to determine whether Purchasers can or are willing
to make a proposal that is superior to the Transaction Proposal. Subject to
complying with the foregoing provisions of this Section 5.07, the Special
Committee and its representatives and advisors on behalf of the Company may
solicit Transaction Proposals and furnish or cause the Company to furnish
information with respect to the Company and its Subsidiaries to any Person and
may participate in discussions or negotiations regarding any Transaction
Proposal.
SECTION 5.08 Access and Information.
(a) Access. From the date hereof until the Closing (and in any
event subject to the provisions of Section 5.09(a)), the Company shall permit
Purchasers (and their designated representatives) to visit and inspect any of
the properties of the Company and the Subsidiaries, including the books and
records of the Company and the Subsidiaries (and to make extracts and copies
therefrom), and to consult with respect to and discuss the affairs, businesses,
finances, operations and accounts of the Company and the Subsidiaries with the
officers, directors, employees, affiliates and agents of such entities, all at
such reasonable times and as often as Purchasers may reasonably request.
(b) Information. The Company covenants that so long as any
Purchaser owns shares of Common Stock equal in number to at least 5% of the
Shares sold to it on the Closing Date, the Company will deliver to such
Purchaser the following:
(i) As soon as practicable and in any event
within 45 days after the end of each quarterly period (other
than the last quarterly period) in each fiscal year, (A) a
consolidated statement of income and consolidated statements
of changes in financial position and cash flows of the Company
and the Subsidiaries for such quarterly period and for the
period from the beginning of the current fiscal year to the
end of such quarterly period, and (B) a consolidated balance
sheet of the Company and the Subsidiaries as at the end of
such quarterly period, setting forth in each case, in
comparative form, figures for the corresponding periods in the
preceding fiscal year and corresponding figures for the budget
for such quarterly period, all in reasonable detail and
certified by an authorized financial officer of the Company,
subject to changes resulting from year-end adjustments;
provided, however, that delivery pursuant to clause (iii)
below of a
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copy of the Quarterly Report on Form 10-Q of the Company for
such quarterly period filed with the SEC shall be deemed to
satisfy the requirements of this clause (i);
(ii) As soon as practicable and in any event
within 120 days after the end of each fiscal year, (A) a
consolidated statement of income and consolidated statements
of changes in financial position and cash flows of the Company
and the Subsidiaries for such year, and (B) a consolidated
balance sheet of the Company and the Subsidiaries as of the
end of such year, setting forth in each case, in comparative
form, corresponding consolidated figures from the preceding
annual audit and corresponding figures for the budget for such
fiscal year, all in reasonable detail together with an opinion
directed to the Company of independent public accountants of
recognized standing selected by the Company; provided,
however, that delivery pursuant to clause (iii) below of a
copy of the Annual Report on Form 10-K of the Company for such
fiscal year filed with the SEC shall be deemed to satisfy the
requirements of this clause (ii);
(iii) Promptly upon transmission thereof,
copies of all financial statements, proxy statements, notices
and reports as it shall send to its public stockholders and
copies of all registration statements (without exhibits),
other than on Form S-8 or any similar successor form, and all
reports which it files with the SEC (or any governmental body
or agency succeeding to the functions of the SEC);
(iv) Promptly upon receipt thereof, copies of
all reports submitted to the Company by independent public
accountants in connection with each annual, interim or special
audit of the books of the Company or any Subsidiary made by
such accountants, including the comment letter submitted by
such accountants to management in connection with their annual
audit; and
(v) With reasonable promptness, such other
financial data as any Purchaser may reasonably request.
SECTION 5.09 Confidentiality and Publicity.
(a) Confidentiality. Each of the Purchasers recognizes and
acknowledges that it has in the past, currently has, and in the future may
possibly have, access to certain confidential information of the Company. Each
Purchaser agrees that it will not disclose confidential information with respect
to the Company to any Person for any purpose or reason whatsoever, except to
authorized representatives of such Purchaser and to counsel and other advisers,
provided, however, that such advisers (other than counsel) agree to the
confidentiality provisions of this subsection 5.09(a), unless (i) such
information is publicly known or becomes known to the public generally through
no fault of any of the Purchasers, (ii) is independently developed by the
Purchasers without the use of the Company's confidential information, (iii) is
disclosed without similar restrictions to a third party by the Company or a
Subsidiary, or (iv) disclosure is required by law (including securities law
disclosure requirements and stock
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exchange rules), or the order of any governmental authority under color of law,
or to enforce its rights under this Agreement; provided, however, that prior to
disclosing any information pursuant to this Section 5.09(a), a Purchaser shall,
if reasonably possible, give prior written notice thereof to the Company and
provide the Company with the opportunity to contest such disclosure.
(b) Publicity. Prior to Closing, the Company and Purchasers
will consult with each other before issuing any press release or otherwise
making any public statements with respect to the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or by
obligations pursuant to any listing agreement with any securities exchange.
SECTION 5.10 Restrictions. Each Purchaser covenants and agrees with the
Company that such Purchaser will not dispose of any of such Purchaser's shares
of the Shares except pursuant to (a) an effective registration statement under
the Act or (b) an applicable exemption from registration under the Act. In
connection with any sale by a Purchaser pursuant to clause (b) of the preceding
sentence, such Purchaser shall furnish to the Company an opinion of counsel
reasonably satisfactory to the Company to the effect that such exemption from
registration is available in connection with such sale.
SECTION 5.11 Further Assurances. Following the Closing Date, the
Company shall, and shall cause each of the Subsidiaries to, from time to time,
execute and deliver such additional instruments, documents, conveyances or
assurances and take such other actions as shall be necessary, or otherwise
reasonably be requested by Purchasers, to confirm and assure the rights and
obligations provided for in this Agreement and the Transaction Documents and
render effective the consummation of the transactions contemplated hereby and
thereby.
SECTION 5.12 Directors' and Officers' Indemnification and Insurance.
(a) The provisions with respect to indemnification that are
set forth in the bylaws of the Company shall not be amended, repealed or
otherwise modified for a period of six years from the Closing Date in any manner
that would affect adversely the rights thereunder of individuals who are or, at
any time prior to the Closing Date, were directors, officers, employees or
agents of Company with respect to claims arising from facts or events that
occurred at or prior to the Closing.
(b) Prior to the Closing, the Company shall have offered each
director of the Company the opportunity to enter into an indemnification
agreement in a form reasonably acceptable to such director (the "Indemnification
Agreements").
(c) For a period of six years after the Closing Date, the
Company shall maintain in effect the directors' and officers' liability
insurance policies maintained by the Company immediately prior to the Closing;
provided, however, that the Company may substitute therefor policies of at least
the same coverage and amounts containing terms and conditions which are not
materially less advantageous with respect to claims arising from facts or events
which occurred at or before the Closing; provided further, however, that, in no
event shall the
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Company be required to expend in any one year in excess of 125% of the annual
premium currently paid by the Company for such coverage, which current premium
amount is set forth on the Disclosure Schedule and if the premium for such
coverage exceeds such amount, the Company shall purchase a policy with the
greatest coverage available for such 125% of the annual premium.
(d) If the Company or any of its successors or assigns (i)
consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
Person, then and in each such case, proper provision shall be made so that the
successors and assigns of the Company assume the obligations set forth in this
Section 5.12.
(e) The foregoing provisions of Section 5.12 are obligations
of the Company and not of any of the Purchasers.
SECTION 5.13 Shareholders Agreement. Each of the parties agrees (i)
that they will enter into the Shareholders Agreement, (ii) that the Shareholders
Agreement shall not become effective prior to the Closing and (iii) that the
Exchange Agreement to be entered into by and between the Company and holders of
Series B Preferred Stock shall not restrict or impede the parties thereto from
considering or accepting any Superior Transaction Proposal.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 Conditions to Each Party's Obligations. The obligations of
the Company and each Purchaser to consummate the transactions contemplated to
occur at the Closing shall be subject to the satisfaction prior to the Closing
of each of the following conditions, each of which may be waived only if it is
legally permissible to do so:
(a) HSR and Other Approvals. Any applicable waiting period
under the HSR Act relating to the transactions contemplated hereby shall have
expired or been terminated, and all other material authorizations, consents,
orders or approvals of, or regulations, declarations or filings with, or
expirations of applicable waiting periods imposed by, any Governmental Entity
(including, without limitation, any foreign antitrust filing) necessary for the
consummation of the transactions contemplated hereby, shall have been obtained
or filed or shall have occurred.
(b) No Litigation, Injunctions, or Restraints. No statute,
rule, regulation, executive order, decree, temporary restraining order,
investigation, suit, proceeding, preliminary or permanent injunction or other
order shall have been enacted, entered, promulgated, enforced or issued by any
Governmental Entity that presents a substantial risk of the restraint or
prohibition of the transactions contemplated by this Agreement or any of the
Transaction Documents or the obtaining of material damages or other relief from
any one or more of the Purchasers in connection therewith.
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(c) Stockholder Approvals. The Stockholder Approvals have been
obtained.
(d) Management Agreement Amendment. The management agreement
by and among the Company, TSC and Xxxxxx X. Tutor dated January 17, 1997, as
amended on December 23, 1998 and December 31, 1999 (the "Management Agreement
Amendment"), shall be in full force and effect.
SECTION 6.02 Conditions to the Obligations of the Company. The
obligations of the Company to consummate the transactions contemplated to occur
at the Closing shall be subject to the satisfaction or waiver thereof by the
Company prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Purchaser that are qualified as to materiality shall be true
and correct, and those that are not so qualified shall be true and correct in
all material respects, as of the date of this Agreement and as of the time of
the Closing as though made at and as of such time, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties that are qualified as to materiality
shall be true and correct, and those that are not so qualified shall be true and
correct in all material respects, on and as of such earlier date) and the
Company shall have received a certificate signed by an authorized officer of
each Purchaser to such effect.
(b) Performance of Obligations of Purchasers. Each Purchaser
shall have performed or complied in all material respects with all obligations
and covenants required to be performed or complied with by such Purchaser under
this Agreement, and the Company shall have received a certificate signed by the
chief executive officer and chief financial officer of each Purchaser to such
effect.
(c) Closing Deliveries. Purchasers shall have delivered to the
Company on or before the Closing the following:
(i) The Registration Rights Agreement, to be
dated as of the date of the Closing, in substantially the form
of Exhibit 6.02(c)(i), executed by Purchasers;
(ii) The Shareholders Agreement, to be dated
as of the date of the Closing, substantially in the form of
Exhibit 6.02(c)(ii), executed by Purchasers;
(iii) Executed and conformed copies of such
other certificates, letters and documents as the Company may
reasonably request and as are customary for transactions such
as those contemplated by this Agreement;
(iv) $10 million by TSC by wire transfer of
immediately available funds as its share of the Purchase
Price;
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(v) $10 million by O&G by wire transfer of
immediately available funds as its share of the Purchase
Price;
(vi) $20 million by National Union by wire
transfer of immediately available funds as its share of the
Purchase Price; and
(vii) a Certificate of the Secretary or
Assistant Secretary of each of the Purchasers dated as of the
Closing Date certifying: (1) that attached thereto is a true
and complete copy of the By-Laws, or comparable organization
document, of such Purchaser as in effect on the date of such
certification; (2) that attached thereto is a true and
complete copy of all resolutions adopted by the Board of such
Purchaser authorizing the execution, delivery and performance
of the Agreement, and that all such resolutions are in full
force in effect and are all the resolutions adopted in
connection with the transactions contemplated by this
Agreement; (3) that attached thereto is a true and complete
copy of such Purchasers' articles of incorporation, or
comparable organization document, as in effect on the date of
such certification; and (4) to the incumbency and specimen
signature of certain officers of the Company.
(d) Bring Down of Fairness Opinion. The Special Committee
shall have affirmed its recommendation to the Board that the Company execute and
perform this Agreement after the delivery of a "bring down" fairness opinion by
the Special Committee's financial advisor in a form reasonably satisfactory to
the Special Committee as of a date no earlier than three days prior to the
Closing.
SECTION 6.03 Conditions to the Obligations of Purchasers. The
obligations of each Purchaser to consummate the transactions contemplated to
occur at the Closing shall be subject to the satisfaction or waiver thereof
prior to the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement that are qualified as to
materiality shall be true and correct, and those that are not so qualified shall
be true and correct in all material respects, as of the date of this Agreement
and as of the time of the Closing as though made at and as of such time, except
to the extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those that are not so qualified shall
be true and correct in all material respects, on and as of such earlier date),
and Purchasers shall have received a certificate signed by the chief executive
officer and chief financial officer of the Company to such effect.
(b) Performance of Obligations of the Company. The Company
shall have performed or complied in all material respects with all obligations
and covenants required to be performed or complied with by the Company under
this Agreement, and Purchasers shall have received a certificate signed by the
chief executive officer and chief financial officer of the Company to such
effect.
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(c) Series B Preferred Stock. Holders of the Series B
Preferred Stock shall have agreed to exchange no less than 100% of the then
outstanding face amount of those securities (including accrued but unpaid
dividends) in exchange for Common Stock at an exchange price of $5.50 per share
of Common Stock. In addition, the holders of the Series B Preferred Stock shall
have approved the amendments, revisions and waivers to the certificate of vote
for the Series B Preferred Stock and the Stock Purchase and Sale Agreement,
dated as of July 24, 1996, by and among Xxxxxxx X. Xxxx & Associates, L.P., PB
Capital Partners, L.P., and Perini Corporation, as amended (the "Series B
Purchase Agreement"), set forth on Exhibit 6.03(c).
(d) By-Law Amendments. The By-Laws shall have been amended and
restated in accordance with Exhibit 6.03(d) and such amendments (the "By-Law
Amendment") shall have been approved and made effective by the Board, the
Executive Committee and the holders of the Series B Preferred Stock, subject to
Closing.
(e) Due Diligence. Each Purchaser (other than TSC) shall be
fully satisfied in its sole discretion with the results of its review of, and
its due diligence investigations with respect to, the business, operations,
affairs, prospects, properties, assets, existing and potential liabilities,
obligations, profits and conditions (financial or otherwise) of the Company
(including the Disclosure Schedule). A Purchaser shall be deemed to be so
satisfied unless it notifies the Company in writing at or prior to 11:59 p.m.,
Eastern Time, on the date that is fourteen (14) calendar days after the date of
this Agreement (the "Diligence Termination Time") that it is terminating this
Agreement pursuant to Section 7.01(c)(iv) because it is not so satisfied. Until
the Closing, the Company shall (and shall cause each of the Subsidiaries to)
cooperate promptly and fully with Purchasers' officers, employees, counsel,
accountants and other authorized representatives (the "Representatives") and
shall afford such Representatives reasonable access during normal business hours
to all of its (1) sites, properties, books, contracts and records and personnel
and advisers (who will be instructed by the Company to cooperate), (2) such
additional financial and operating data and other information as to its business
and properties as the Purchasers may from time to time reasonably request,
including without limitation, access upon reasonable request to the Company's
Representatives, major customers, vendors, suppliers and creditors for due
diligence inquiry. The Company shall (and shall cause each of the Subsidiaries
to) furnish promptly to the Purchasers all information concerning its business,
properties and personnel as the Purchasers or their Representatives may
reasonably request on or before the Diligence Termination Time; provided that
any review will be conducted in a way that will not interfere unreasonably with
the conduct of the Company's business. The Purchasers will keep all information
and documents obtained pursuant to this Section 6.03(e) on a confidential basis
subject to Section 5.09(a).
(f) Poison Pill. The Rights Agreement shall be in full force
and effect and not have been otherwise amended, modified or supplemented on or
after the date of this Agreement; provided, however, that the Board shall have
amended or waived provisions of the Rights Agreement such that (i) neither the
execution nor the delivery of any Transaction Document nor the fulfillment of
the terms of any Transaction Document by the Company or any of the Purchasers
nor the issuance of Shares as herein and therein contemplated will cause there
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to be a Stock Acquisition Date or a Distribution Date and (ii) the Purchasers
will not be deemed to be Adverse Persons (as those terms are defined in the
Rights Agreement).
(g) Credit Facility. The bank loan syndicate representing the
lenders to the Company pursuant to the Amended and Restated Credit Agreement,
dated as of January 17, 1997, among the Company, the Banks listed therein and
Xxxxxx Guaranty Trust Company of New York, as Agent, as amended from time to
time (the "Credit Facility"), shall have agreed to convert the Credit Facility
to a term loan and revolving credit facility, substantially in accordance with
the terms set forth on Exhibit 6.03(g)
(h) Closing Deliveries. The Company shall have delivered to
Purchasers on or before the Closing the following:
(i) Opinion of Xxxxxxx, Procter & Xxxx LLP,
dated as of the Closing Date, in form reasonably satisfactory
to Purchasers;
(ii) The Registration Rights Agreement,
executed by the Company;
(iii) The Shareholders Agreement, executed by
the Company;
(iv) Certificate of the Secretary or
Assistant Secretary of the Company dated as of the Closing
Date certifying: (i) that attached thereto is a true and
complete copy of the By-Laws of the Company as in effect on
the date of such certification; (ii) that attached thereto is
a true and complete copy of all resolutions adopted by the
Board authorizing the execution, delivery and performance of
the Agreement, the issuance, sale and delivery of the Shares,
and that all such resolutions are in full force in effect and
are all the resolutions adopted in connection with the
transactions contemplated by this Agreement and the
Transaction Documents; (iii) that attached thereto is a true
and complete copy of the Articles of Organization as in effect
on the date of such certification; and (iv) to the incumbency
and specimen signature of certain officers of the Company;
(v) Certificates representing the number of
the shares of Common Stock to be purchased, as described in
Section 2.02; and
(vi) Executed and conformed copies of such
other certificates, letters and documents as Purchasers may
reasonably request and as are customary for transactions such
as those contemplated by this Agreement and the Transaction
Documents.
(i) Tax Matters. The Company shall have received an opinion in
the form of Exhibit 6.03(i) hereto, from the Company's independent tax advisors
that a "change in ownership" within the meaning of Section 382 of the Internal
Revenue Code of 1986, as amended, and the Treasury Regulations promulgated
thereunder, shall not occur as a result of (i)
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the sale of 9,411,765 shares of Common Stock for $40 million, (ii) the exchange
of 100% of the Series B Preferred Stock for Common Stock at a price of $5.50 per
share, or (iii) any other transaction or occurrence prior to the Closing.
(j) Corporate Proceedings. All corporate proceedings of the
Company in connection with the transactions contemplated by this Agreement and
the Transaction Documents, and all documents and instruments incident thereto,
shall be satisfactory in form and substance to Purchasers and its counsel, and
Purchasers and its counsel shall have received all such documents and
instruments, or copies thereof, certified or requested, as may be reasonably
requested. The Special Committee of the Board shall have recommended the
execution and performance of this Agreement and the Transaction Documents to the
full Board after the delivery of a fairness opinion by the Special Committee's
financial advisor in a form reasonably satisfactory to the Special Committee and
the full Board shall have approved such execution and performance.
(k) Material Adverse Effect. No event, change or development
shall exist or have occurred since the date hereof which, individually or in the
aggregate with other events, changes or developments, has had or is reasonably
likely to have a Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole; provided, however, that Material Adverse Effect with respect
to this Section 6.03(k) shall not include (i) changes in general industry,
economic, regulatory, political or stock market conditions that affect the
Company (or the markets in which the Company competes) in a manner not
disproportionate to the manner in which such conditions affect other companies
in the industries or markets in which the Company competes; (ii) any
circumstances or events (including, without limitation, any loss of personnel,
loss of customers, loss of suppliers or the delay or cancellation of any orders
for products) arising primarily out of or resulting primarily from actions
contemplated by Company and the Purchasers in connection with this Agreement
and/or the transactions contemplated hereby; or (iii) changes in GAAP.
(l) Chapter 110F. The Issuance of the Shares hereunder shall
have been exempted from the provisions of Chapter 110F of the Massachusetts
General Laws.
(m) Listing. The Shares shall have been approved for listing
on the American Stock Exchange, subject only to official notice of issuance, as
required.
(n) Fundamental Corporate Changes. Except as specifically
contemplated hereby, the Company shall not have caused or permitted (i) any
change to the composition of the Executive Committee of the Board, or (ii) any
change to be made to the duties, rights and responsibilities of the Chairman.
Xxxxxx X. Tutor shall be serving as Chairman of the Company.
(o) Additional Conditions.
(i) As to TSC, O&G and National Union shall
have delivered at the Closing their respective portions of the
Purchase Price, each of O&G and
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National Union shall have executed and delivered the
Shareholders Agreement at the Closing.
(ii) As to O&G, TSC and National Union shall
have delivered at the Closing their respective portions of the
Purchase Price, each of TSC and National Union shall have
executed and delivered the Shareholders Agreement at the
Closing.
(iii) As to National Union, O&G and TSC shall
have delivered at the Closing their respective portions of the
Purchase Price, each of O&G and TSC shall have executed and
delivered the Shareholders Agreement at the Closing.
(p) Certain Events. There shall not be in effect on the
Closing Date (i) any suspension or limit of trading in securities generally on
the American Stock Exchange (including automatic halt in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), (ii) the imposition generally of minimum or maximum prices
on such exchange or on The Nasdaq Stock Market or additional material
governmental restrictions, in either case not in force on the date of this
Agreement, by such exchange or by order of the SEC or the National Association
of Securities Dealers or any court or other governmental authority, (iii) the
declaration of any general banking moratorium by either Federal or New York
State authorities, or (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or economic
conditions in the United States or any outbreak or escalation of hostilities or
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of any of which of the items referred to in
clauses (i), (ii), (iii) and (iv) is such as to make it, in reasonable judgment
of any Purchaser, impracticable or inadvisable to acquire the Shares on the
terms and in the manner contemplated by this Agreement.
ARTICLE VII
TERMINATION
SECTION 7.01 Termination. This Agreement may be terminated at any time
prior to the Closing, whether before or after the Stockholder Approvals have
been obtained:
(a) by mutual written consent of all of the Purchasers and the
Company;
(b) by any Purchaser or the Company:
(i) if the Closing shall not have occurred
prior to April 5, 2000, sixty days from the date of this
Agreement (the "Outside Date"); provided, however, that the
right to terminate this Agreement pursuant to this clause (i)
shall not be available to any party whose failure to fulfill
any obligation under this Agreement results in the failure of
the Closing to occur; and provided further, that
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the Outside Date shall be extended by no more than sixty (60)
days in the event that the conditions to the Purchasers'
obligations to close cannot be satisfied due to events that
are not within the control of, and have not been caused by,
the Company or the Special Committee, for which purposes
delays caused by review or comments by the SEC shall not be
deemed to have been within the control of or caused by the
Company or the Special Committee; or
(ii) if the Stockholder Approvals shall not
have been obtained notwithstanding the holding of a vote on
the Stockholder Meeting Proposals at the Stockholder Meeting
(including any adjournment or postponement) contemplated by
Section 5.05 (provided that the right to terminate this
Agreement under this Section shall not be available to any
party seeking termination who at the time is in breach of or
has failed to fulfill its obligations under this Agreement);
or
(iii) if there shall be any statute, law,
regulation or rule that makes consummating the transactions
contemplated hereby illegal or if any court or other
Governmental Entity of competent jurisdiction shall have
issued a judgment, order, decree or ruling, or shall have
taken such other action restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated
hereby and such judgment, order, decree or ruling shall have
become final and non-appealable (provided that, the party
seeking to terminate pursuant to this Section shall have used
commercially reasonable efforts to have any such order,
decree, ruling or other action vacated or lifted);
(c) by any Purchaser:
(i) if the Company shall have failed to
perform in any material respect any of its obligations
hereunder or shall have breached in any respect any
representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and the Company
has failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from
such Purchaser, and such failure to perform shall not have
been waived in accordance with the terms of this Agreement; or
(ii) if the Board or any committee thereof
withdraws or modifies (or publicly announces its intention to
do so, or resolves to do so) in a manner adverse to Purchasers
(as determined by any Purchaser in its reasonable judgment)
its approval or recommendation of this Agreement or the
transactions contemplated hereby or approves or recommends a
Transaction Proposal; or
(iii) if any of the conditions set forth in
Section 6.01 (other than Section 6.01(c)) or 6.03 shall become
impossible to fulfill (other than as a result of any breach by
such Purchaser of the terms of this Agreement) and shall not
have been waived in accordance with the terms of this
Agreement; or
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(iv) if any Purchaser (other than TSC) is not
satisfied with the Company (including as to any matters
contemplated by the Disclosure Schedules or the Filed Company
SEC Documents) as a result of its due diligence review and has
given the notice in the manner required by Section 6.03(e);
(d) by the Company:
(i) if any of the Purchasers shall have
failed to perform in any material respect any of their
obligations hereunder or shall have breached in any respect
any representation or warranty contained herein qualified by
materiality or shall have breached in any material respect any
representation or warranty not so qualified, and Purchasers
have failed to perform such obligation or cure such breach,
within 30 days of its receipt of written notice thereof from
the Company, and such failure to perform shall not have been
waived in accordance with the terms of this Agreement; or
(ii) if any of the conditions set forth in
Section 6.01 (other than Section 6.01(c)) or 6.02 shall become
impossible to fulfill (other than as a result of any breach by
the Company of the terms of this Agreement) and shall not have
been waived in accordance with the terms of this Agreement; or
(iii) upon ten (10) days written notice to
Purchasers, if all of the following conditions have been met:
(x) the Company has complied with the terms of Section 5.07,
(y) the Company has received a Transaction Proposal that the
Special Committee has concluded, based on the advice of a
nationally-recognized investment banking firm (which shall
include Xxxxxxxx), is superior to the terms set forth herein
(a "Superior Transaction Proposal"), and (z) the Special
Committee determines in good faith, after consultation with
outside counsel, that it is advisable to do so in order to
comply with its fiduciary duties to the Company's stockholders
under applicable law.
SECTION 7.02 Effect of Termination. In the event of termination of this
Agreement by either the Company or any Purchaser as provided in Section 7.01,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of either Purchaser or the Company, other
than the provisions of this Section 7.02, Section 5.09(a) and Article IX and
except to the extent that such termination results from the willful and material
breach by a party of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
SECTION 7.03 Termination by One Purchaser. Notwithstanding the
provisions of this Article VII, the exercise by any one Purchaser of its
termination rights under Section 7.01 shall relieve such Purchaser of all
obligations under this Agreement (other than those set forth in this Section
7.03, Section 5.09(a) and Section 9.08) but shall not result in the termination
of this Agreement if, within five Business Days of receipt of such termination
notice by the other Purchasers, one or more of the other Purchasers shall agree
to an amendment to Exhibit 2.01 pursuant to which all Shares proposed to be
purchased under this Agreement are
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purchased by the other Purchasers (and provide a copy of such amended Exhibit
2.01 to the Company).
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01 Indemnification of Purchasers. The Company covenants and
agrees to defend, indemnify and hold harmless each of the Purchasers, their
Affiliates (other than the Company and any of its Subsidiaries), and their
respective officers, directors, partners, employees, agents, advisers and
representatives (collectively, the "Purchaser Indemnitees") from and against,
and pay or reimburse the Purchaser Indemnitees for, any and all Indemnifiable
Losses resulting from or based on (or allegedly resulting from or based on):
(a) any litigation or claims (including by any stockholders of
the Company in connection with any derivative actions, but not including any
litigation or claims brought or made by any of the Purchaser Indemnitees under
this clause (a)) resulting from or based on (or allegedly resulting from or
based on) any of the transactions contemplated by the Transaction Documents,
provided that the indemnity provided in this clause (a) shall not include (i)
losses resulting from or based on the acts or omissions of Purchaser Indemnitees
following the Closing, or (ii) claims resulting from or based on a breach by any
of the Purchasers of its obligations, representations, warranties, agreements or
covenants under this Agreement; or (iii) claims resulting from any contract,
obligation or other agreement between a third party claimant (other than a
stockholder, whether common or preferred, bondholder, lender, director or
officer of the Company (or an Affiliate of any of the foregoing)) and any
Purchaser; provided, however, that in no such case shall this Section 8.01(a) be
construed to limit the indemnity rights that a Purchaser Indemnitee may have in
any other Transaction Document; or
(b) any breach by the Company of any representation, warranty,
covenant or obligation of the Company hereunder or under any other Transaction
Document.
The Company shall reimburse the Purchaser Indemnitees for any legal or other
expenses incurred by such Purchaser Indemnitees in connection with investigating
or defending any such Indemnifiable Losses as such expenses are incurred.
Notwithstanding the foregoing provisions of this Section 8.01, the Company shall
not be liable to a Purchaser Indemnitee in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or omission made in the Proxy Statement, or any such amendment
or supplement, in reliance upon and in conformity with written information
furnished to the Company by such Purchaser Indemnitee (or its Affiliates),
specifically for use in the preparation thereof.
SECTION 8.02 Indemnification Procedures. Promptly after receipt by a
Purchaser Indemnitee of notice of the commencement of any action or the written
assertion of any claim, such Purchaser Indemnitee shall, if a claim in respect
thereof is to be made against the Company, as the case may be (the "Indemnifying
Person"), notify the Indemnifying Person in
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writing of the commencement or the written assertion thereof. Failure by a
Purchaser Indemnitee to so notify the Indemnifying Person shall relieve the
Indemnifying Person from the obligation to indemnify such Purchaser Indemnitee
only to the extent that the Indemnifying Person suffers actual and material
prejudice as a result of such failure but in no event shall such failure to
notify the Indemnifying Person (i) constitute prejudice suffered by the
Indemnifying Person if it has otherwise received notice of the actions giving
rise to such obligation to indemnify or (ii) relieve it from any liability or
obligation that it may otherwise have to such Purchaser Indemnitee under this
Agreement. In case any such action or claim shall be brought or asserted against
any Purchaser Indemnitee and it shall notify the Indemnifying Person of the
commencement or assertion thereof, the Indemnifying Person shall be entitled to
participate therein but the defense of such action or claim shall be conducted
by counsel to the Purchaser Indemnitee, provided, however, that the Indemnifying
Person shall not, in connection with any one such action or proceeding or
separate but substantially similar actions or proceedings arising out of the
same general allegations, be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all Purchaser Indemnitees, except to
the extent that local counsel, in addition to regular counsel, is required in
order to effectively defend against such action or proceeding and provided
further that a Purchaser Indemnitee shall not enter into any settlement of any
such claim without the prior consent of the Company, such consent not to be
unreasonably withheld or delayed.
SECTION 8.03 Survival of Representations, Warranties and Covenants.
Except as provided in clauses (a), (b) or (c) of this Section 8.03, the
representations, warranties, covenants, and agreements included in this
Agreement shall survive for a period of three (3) years: (a) the obligations set
forth in Sections 5.08 (Access and Information), 5.09(b) (Publicity) and 5.12
(Directors' and Officers' Indemnification and Insurance), shall survive for the
periods specified therein for the performance of the covenants set forth
therein; (b) the representations set forth in Sections 3.01(n) (Taxes), 3.01(o)
(Employee Benefit Plans and Related Matters; ERISA) and 3.01(p) (Environmental
Laws) shall survive until the date that is six (6) months after the expiration
of the longest applicable federal or state statute of limitations; and (c) the
obligations set forth in Sections 5.09(a) (Confidentiality), and 5.10
(Restrictions), and Articles VIII (Indemnification) and IX (Miscellaneous) shall
survive indefinitely.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
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SECTION 9.02 Specific Enforcement. Purchasers, on the one hand, and the
Company, on the other, acknowledge and agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they may be entitled at law or equity.
SECTION 9.03 Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) and the other Transaction Documents contain the entire
understanding of the parties with respect to the transactions contemplated
hereby.
SECTION 9.04 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more of the counterparts have been signed
by each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
SECTION 9.05 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
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
TSC:
Xxxxx-Xxxxxx Corp.
Attn: Xxxxxx X. Tutor
00000 Xxxxx Xxxxxx
00
00
Xxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
National Union:
National Union Fire Insurance Company of
Pittsburgh, PA.
c/o AIG Global Investment Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxx
Facsimile: (000) 000-0000
with a copy to:
American International Group, Inc.
Law Department
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx
Facsimile: (000) 000-0000
O&G:
O&G Industries, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx; Xxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Murtha, Cullina, Xxxxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
City Place I
Hartford, Connecticut 06103-3469
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
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or to such other address or telex number as any party may, from time to time,
designate in a written notice given in a like manner.
SECTION 9.06 Amendments. This Agreement may be amended as to Purchasers
and their successors and assigns (determined as provided in Section 9.07), and
the Company may take any action herein prohibited, or omit to perform any act
required to be performed by it, if the Company shall obtain the written consent
of Purchasers. This Agreement may not be waived, changed, modified, or
discharged orally, but only by an agreement in writing signed by the party or
parties against whom enforcement of any waiver, change, modification or
discharge is sought or by parties with the right to consent to such waiver,
change, modification or discharge on behalf of such party.
SECTION 9.07 Successors and Assigns. All covenants and agreements
contained herein shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns. Prior to the Closing Date, National
Union may assign all of its rights and obligations to American International
Group, Inc. ("AIG") or any other person the equity of which is, directly or
indirectly, 100% owned by AIG, without the consent of the other parties hereto,
and may assign up to 50% of the interest to be acquired by it pursuant to this
Agreement to a third party, subject to the written consent of the Company and
TSC, which shall not be unreasonably withheld (and, in either such event, such
assignee shall become a "Purchaser" hereunder). Except as provided in the
preceding sentence, no party may assign any of its rights under this Agreement
without the written consent of the other parties.
SECTION 9.08 Expenses and Remedies.
(a) All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
incurring such expense, except as set forth in the next four paragraphs.
(b) Notwithstanding Section 9.08(a), (i) if a Purchaser
terminates this Agreement pursuant to Section 7.01(c)(i) (due to material breach
of any covenant or agreement or an intentional and willful breach of any
representation or warranty by the Company) or (c)(ii), or (ii) if the Company
terminates this Agreement pursuant to Section 7.01(d)(ii) (by virtue of a
failure of the condition set forth in Section 6.02(d)) or 7.01(d)(iii), the
Company shall pay TSC a termination fee of $750,000 (the "Termination Fee")
within ten (10) days of such termination, which Termination Fee shall be deemed
to reimburse Purchasers for their legal, accounting and other out-of-pocket
expenses as well as the damages they will have suffered by virtue of such
termination.
(c) Notwithstanding Section 9.08(a), (i) if a Purchaser or the
Company terminates this Agreement pursuant to Section 7.01(b)(i) or (ii), (ii)
if a Purchaser terminates this Agreement pursuant to Section 7.01(c)(i) (for
reasons other than as provided in Section 9.08(b)) or (c)(iii) (for failures of
the conditions set forth in 6.03(a), 6.03(b), 6.03(d), 6.03(f), 6.03(g)
(provided that no amount shall be payable if the failure is not due to any fault
of the Company), 6.03(h), 6.03(i), 6.03(j), 6.03(k), 6.03(l), 6.03(m), or
6.03(n)), or (iii) the Company terminates this Agreement pursuant to Section
7.01(d)(ii) (other than for failure of a condition set forth in
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section 6.02(d)), the Company shall reimburse Purchasers for the reasonable
out-of-pocket expenses (including reasonable fees and expenses of legal counsel)
incurred by Purchasers in connection with this Agreement or the matters
contemplated hereby (the "Purchasers' Expenses"), which reimbursable amount
shall not to exceed $600,000 in the aggregate.
(d) Notwithstanding Section 9.08(a), if (i) either Purchaser
or the Company terminates this Agreement pursuant to any provision of Section
7.01 (other than a termination for which a Termination Fee was paid pursuant to
Section 9.08(b) and other than a termination by the Company pursuant to Section
7.01(d)(i)), and (ii) during the period ending twelve (12) months after
termination of this Agreement, the Company enters into an agreement relating to
a Transaction Proposal, then immediately prior to consummation of such
transaction, the Company shall pay the Termination Fee; provided, however, that
the Company shall receive a credit for any Purchasers' Expenses paid pursuant to
Section 9.08(c) and it being understood that if the Termination Fee is paid
pursuant to Section 9.08(b) it shall not be required to be paid subsequently
under this Section 9.08(d).
(e) Notwithstanding Section 9.08(a), upon the occurrence of
the Closing, the Company shall reimburse the Purchasers for the Purchasers'
Expenses, which reimbursable amount shall not be subject to the limit set forth
in Section 9.08(c).
SECTION 9.09 Transfer of Shares. Each Purchaser understands and agrees
that the Shares have not been registered under the Securities Act or the
securities laws of any state and that they may be sold or otherwise disposed of
only in one or more transactions registered under the Securities Act and, where
applicable, such laws or as to which an exemption from the registration
requirements of the Securities Act and, where applicable, such laws is
available. Each Purchaser acknowledges that except as provided in the
Registration Rights Agreement, it has no right to require the Company to
register the Shares. Each Purchaser understands and agrees that each certificate
representing shares of Common Stock shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR AN APPLICABLE
EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH
LAWS."
and Purchaser agrees to transfer shares of Common Stock only in accordance with
the provisions of such legends. After termination of the requirement that all or
part of such legend be placed upon a certificate, the Company shall, upon
receipt by the Company of evidence reasonably satisfactory to it that such
requirement has terminated and upon the written request of the holders of the
Shares issue certificates for the Shares that do not bear such legend.
SECTION 9.10 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the
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State of New York, except to the extent that Massachusetts law mandatorily
governs. Each of the Company and Purchasers irrevocably submits to the personal
exclusive jurisdiction of the United States District Court for the Southern
District of New York for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby (and, to
the extent permitted under applicable rules of procedure, agrees not to commence
any action, suit or proceeding relating hereto except in such court). Each of
the Company and Purchasers further agree that service of any process, summons,
notice or document hand delivered or sent by registered mail to such party's
respective address set forth in Section 9.10 will be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction as set forth in the
immediately preceding sentence. Each of the Company and Purchasers irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in such court that any such action, suit or
proceeding brought in such court has been brought in an inconvenient forum.
SECTION 9.11 Third Party Beneficiaries. As provided in Section 5.12,
the directors of the Company are the intended beneficiaries of that section of
this Agreement. Except as provided in Section 5.12, nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
SECTION 9.12 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
SECTION 9.13 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by the other party as to such
tax consequences.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each Purchaser and the Company have caused
this Agreement to be duly executed as of the day and year first above written.
PERINI CORPORATION XXXXX-XXXXXX CORPORATION
By: /s/ Xxxxxx Band By: /s/ Xxxxxx X. Tutor
--------------------------- --------------------------------
Name: Xxxxxx Band Name: Xxxxxx X. Tutor
Title: President Title: President & Chief Executive
Officer
O&G INDUSTRIES, INC. NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxxx
Title: President ---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
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EXHIBIT 2.01
PURCHASE AND SALE OF SHARES
Xxxxx-Xxxxxx Corporation 2,352,942
O&G Industries, Inc. 2,352,941
National Union Fire Insurance Company of Pittsburgh, PA. 4,705,882
==========
TOTAL 9,411,765
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EXHIBIT 6.02(c)(i)
FORM OF REGISTRATION RIGHTS AGREEMENT
[to be attached]
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EXHIBIT 6.02(c)(ii)
FORM OF SHAREHOLDERS AGREEMENT
[to be attached]
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EXHIBIT 6.03
REQUIRED AMENDMENTS AND REVISIONS
RELATED TO SERIES B PREFERRED STOCK
1. Deletion or waiver of Section 7.2 of the Series B Purchase Agreement in
its entirety.
2. Deletion or waiver of Section 7.3 of the Series B Purchase Agreement in
its entirety.
3. Replacement of Section 7(b) of the Series B Certificate of Vote with:
"On and after the Closing (as defined in the Securities Purchase
Agreement, dated January __, 2000, no action on the part of Corporation
shall constitute a 'Special Default'."
4. Deletion of Section 13 of the Series B Certificate of Vote in its
entirety.
5. Deletion or waiver of Section 7.20 of the Series B Purchase Agreement.
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EXHIBIT 6.03(d)
TERMS OF AMENDMENT TO BY-LAWS
[to be attached]
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EXHIBIT 6.03(g)
TERMS OF AMENDMENT TO CREDIT FACILITIES
[to be attached]
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59
EXHIBIT 6.03(i)
FORM OF KPMG OPINION REGARDING NOLS
[to be attached]
56