Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 29, 2000 by and among
Perini Corporation, a Massachusetts corporation (together with its successors,
the "Company"), Tutor-Saliba Corporation, a California corporation ("TSC"),
Ronald N. Tutor ("RNT"), National Union Fire Insurance Company of Pittsburgh,
PA, a Pennsylvania corporation ("National Union"), and O&G Industries, Inc., a
Connecticut corporation (("O&G"), BLUM Capital Partners, L.P., a California
limited partnership ("BLUM"), PB Capital Partners, L.P., a Delaware limited
partnership ("PB Capital"), The Common Fund for Non-Profit Organizations, a New
York non-profit corporation ("The Common Fund"), and The Union Labor Life
Insurance Company, a Maryland corporation acting on behalf of its Separate
Account P ("ULLICO" and collectively with TSC, RNT, AIG, O&G, BLUM and PB
Capital the "Shareholders").
WHEREAS, pursuant to the terms and conditions of the Securities Purchase
Agreement dated as of February 5, 2000 (the "Securities Purchase Agreement"),
among the Company and the Shareholders, TSC, National Union and O&G shall
acquire shares of common stock, par value $1.00 per share, of the Company on the
Closing (as defined in the Securities Purchase Agreement), in the amounts set
forth opposite each name on Exhibit 2.01 thereto;
WHEREAS, pursuant to the terms of the exchange agreement dated as of
February 7, 2000, between the Company and ULLICO, the exchange agreement dated
as of Februry 14, 2000, between the Company and PB Capital, and the exchange
agreement dated as of February 14, 2000, between the Company and The Common
Fund, such holders have agreed to exchange their Series B Preferred Stock for
Common Stock of the Company; and
WHEREAS, the Company has agreed with the Shareholders to provide certain
rights as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, the following
terms used in this Agreement shall have the meanings specified below.
(a) "BLUM" has the meaning set forth in the introductory paragraph hereof.
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(b) "Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are required or authorized by law to
close.
(c) "The Common Fund" has the meaning set forth in the introductory
paragraph hereof.
(d) "Common Stock" means the common stock, par value $1.00 per share, of
the Company.
(e) "Company" has the meaning set forth in the introductory paragraph
hereof.
(f) "Deferral Period" means the period during which the Company has elected
to postpone the sale or other transfer of Registrable Securities by the holders
thereof pursuant to the applicable terms of Article II of this Agreement or any
other period during which a stop order or other order suspending the
effectiveness of a Registration Statement is in effect.
(g) "Effectiveness Period" means the period commencing on the date hereof
and ending on the date that all Shares shall have ceased to be Registrable
Securities.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
(i) "Managing Underwriters" means the investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
(j) "National Union" has the meaning set forth in the introductory
paragraph hereof.
(k) "Notice Holder" means a holder of Registrable Securities who has given
notice of the intention to distribute such holder's Registrable Securities in
accordance with Section 2.1(d), 2.2 or 2.3, as the case may be.
(l) "O&G" has the meaning set forth in the introductory paragraph hereof.
(m) "PB Capital" has the meaning set forth in the introductory paragraph
hereof.
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(n) "Person" means an individual, a corporation, a partnership, a limited
liability partnership, a limited liability company, an association, a trust or
any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
(o) "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(p) "Public Sale" means any sale of Shares to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (or any successor
provision then in effect) adopted under the Securities Act.
(q) "Registrable Securities" means Shares until the date (if any) when (i)
such Shares shall have been sold or transferred pursuant to a Public Sale, and
transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company or (ii) if
requested to do so, the Company would be required to deliver certificates for
such Shares not bearing a legend restricting further transfer (other than
legends required under Section 2.06 of the Shareholders' Agreement, if
applicable), and, in each case, subsequent sale or other disposition of such
Shares shall not require registration or qualification under the Securities Act
or any similar state or foreign law then in force.
(r) "Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
amendments and supplements to such Prospectus, all exhibits, and all information
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
(s) "Restricted Securities" means the Shares; provided that particular
Shares shall cease to be Restricted Securities when such securities shall have
(x) been sold or transferred pursuant to a Public Sale, or (y) been otherwise
transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state or foreign law then in
force or (z) ceased to be outstanding.
(t) "RNT" has the meaning set forth in the introductory paragraph hereof.
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(u) "Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
(v) "Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(w) "SEC" means the Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
(x) "Securities Act" means the Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such successor Federal statute.
(y) "Securities Purchase Agreement" has the meaning set forth in the
recitals.
(z) "Selling Period" means the period during which a holder of Registrable
Securities shall be entitled to sell its Shares pursuant to a Prospectus under
the applicable provision of Article II of this Agreement.
(aa)"Shares" means shares of Common Stock of the Company (including shares
of Common Stock issued from time to time on conversion or exchange of securities
of the Company), currently held, or subsequently acquired, by a Shareholder or
transferee of, or successor to, a Shareholder, as adjusted for any other shares
of Common Stock or securities issued in respect of such shares or securities
because of stock splits, reverse stock splits, stock dividends,
reclassifications, recapitalizations, merger, consolidation, share exchange or
similar events.
(bb)"Shareholders" has the meaning set forth in the introductory paragraph
hereof.
(cc)"Shareholders' Agreement" means that certain Shareholders' Agreement
dated even date herewith among the Shareholders and the Company.
(dd)"Special Counsel" means any law firm retained from time to time by the
holders of five percent (5%) or more of the Registrable Securities to be sold
pursuant to a Registration Statement or during any Selling Period, as shall be
specified by such holders to the Company; provided that at no time there shall
be more than one Special Counsel the fees and expenses of which will be paid by
the Company pursuant to Section 2.4.
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(ee)"ULLICO" has the meaning set forth in the introductory paragraph
hereof.
(ff)"Underwritten Offering" means a registration in which Registrable
Securities are sold or to be sold to one or more underwriters for reoffering to
the public.
Each of the following terms is defined in the Section set forth opposite
such term:
Term Section
---- -------
"Demand Holders" 2.2(a)
"Demand Registration" 2.2(a)
"Filing Date" 2.1(a)
"Initial Shelf Registration" 2.1(a)
"Initiating Holders" 2.1(a)
"Piggyback Registration" 2.3(a)
"Saleable Number" 3.1(a)
"Shelf Registration" 2.1(a)
"Subsequent Shelf Registration" 2.1(b)
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later than the date (the
"Filing Date") that is thirty (30) days, in the case of a Registration Statement
on Form S-3 (or successor or replacement form) and sixty (60) days, in the case
of a Registration Statement on Form S-1 (or other available form), after receipt
by the Company of a written request by the holder or holders of not less than
five percent (5%) of the Registrable Securities (the "Initiating Holders"), the
Company shall prepare and file with the SEC a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration") registering the resale from time to time
by the holders of all of the Registrable Securities (the "Initial Shelf
Registration"). The Registration Statement for any Shelf Registration shall be
on Form S-3 or another available form permitting registration of such
Registrable Securities
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for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more Underwritten Offerings). The Company
shall use all commercially reasonable best efforts to cause the Initial Shelf
Registration to become effective under the Securities Act as promptly as is
practicable and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the end of the Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf Registration
(as defined below) ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all Registrable Securities shall have
been sold or shall have ceased to be Registrable Securities), the Company shall
use all commercially reasonable best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event shall within
thirty (30) days of such cessation of effectiveness amend the Shelf Registration
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration covering all
of the Registrable Securities (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use all commercially
reasonable best efforts to cause the Subsequent Shelf Registration to become
effective as promptly as is practicable after such filing and to keep such
Registration Statement continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by any holder of the
Registrable Securities covered by such Registration Statement or by any Managing
Underwriter of such Registrable Securities.
(d) Each holder of Registrable Securities agrees that if it wishes to sell
any Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2.1(d). Each
holder of Registrable Securities agrees to give written notice to the Company at
least six (6) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such holder intends to begin such distribution and any information with
respect to such holder and the intended distribution of Registrable Securities
by such holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such holder;
provided that no holder may give such notice unless such notice, together with
notices given by other holders of Registrable Securities joining in such notice
or giving similar notices, covers at least five percent (5%) of the Registrable
Securities. As promptly as is practicable after the date such notice is
provided, and in any event within five (5) Business Days after such date, the
Company shall either:
(i) (A) prepare and file with the SEC a post-effective amendment to
the Shelf Registration or a supplement to the related Prospectus or a
supplement or amendment to any document incorporated therein by reference
or any other required document, so that such Registration Statement will
not contain any
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untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and so that, as thereafter delivered to purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (B) provide each Notice Holder a copy of any documents filed
pursuant to Section 2.1(d)(i)(A); and (C) inform each Notice Holder that
the Company has complied with its obligations in Section 2.1(d)(i)(A) and
that the Registration Statement and related Prospectus may be used for the
purpose of selling all or any of such Registrable Securities (or that, if
the Company has filed a post-effective amendment to the Shelf Registration
which has not yet been declared effective, the Company will notify each
Notice Holder to that effect, will use all commercially reasonable best
efforts to secure the effectiveness of such post-effective amendment and
will immediately so notify each Notice Holder when the amendment has become
effective); each Notice Holder will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related Prospectus only
during the sixty (60) day period in the case of registration on Form S-3,
or the ninety (90) day period in the case of registration on any other form
available for registration, commencing with the date on which the Company
gives notice (such sixty (60) or ninety (90) day period, as the case may
be, to be calculated without regard to any Deferral Period), pursuant to
Section 2.1(d)(i)(C), that the Registration Statement and Prospectus may be
used for such purpose; each Notice Holder agrees that it will not sell any
Registrable Securities pursuant to such Registration Statement or
Prospectus after such Selling Period without giving a new notice of
intention to sell pursuant to Section 2.1(d) hereof and receiving a further
notice from the Company pursuant to Section 2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to suspend
use of the Prospectus for a period of time due to pending material
corporate developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public disclosure
will be prejudicial to the Company, the Company shall deliver a certificate
in writing, signed by its Chief Executive Officer, Chief Financial Officer
or General Counsel, to the Notice Holders, the Special Counsel and the
Managing Underwriters, if any, to the effect of the foregoing and, upon
receipt of such certificate, each such Notice Holder's Selling Period will
not commence until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2.1(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use all commercially
reasonable best efforts to ensure that the use of the Prospectus may be
resumed, and the Selling Period will commence, upon the earlier of (x)
public disclosure of such pending material corporate development or similar
material event or (y) a determination by the Company
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that, in the judgment of the Company, public disclosure of such material
corporate development or similar material event would not be prejudicial to
the Company. Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under Section 2.1(d)(ii) to
defer the commencement of a Selling Period more than one time in any three
(3)-month period or two times in any twelve (12)-month period, and the
period in which a Selling Period is suspended shall not exceed fifteen (15)
days unless the Company shall deliver to such Notice Holders a second
certificate to the effect set forth above, which shall have the effect of
extending the period during which such Selling Period is deferred by up to
an additional fifteen (15) days, or such shorter period of time as is
specified in such second certificate. In no event shall the Company be
permitted to extend the period during which such Selling Period is deferred
from and after the date a Notice Holder provides notice to the Company in
accordance with Section 2.1(d)(ii) of its intention to distribute
Registrable Securities beyond such thirty (30)-day period.
SECTION 2.2 Demand Registration.
(a) At any time during the Effectiveness Period, any holder or holders of
Registrable Securities (the "Demand Holders") may request in writing that the
Company file a Registration Statement under the Securities Act covering the
registration of all or a portion of the Registrable Securities then held by the
Demand Holders (a "Demand Registration"). After the date on which the Company
receives such a request, the Company shall use all commercially reasonable best
efforts (i) to file a Registration Statement under the Securities Act on the
appropriate form (using Form S-3 or other "short form," if available and advised
by counsel) covering all of the Registrable Securities specified by the holders
within forty-five (45) days after the date of such request (thirty (30) days in
the case of a Form S-3) and (ii) to cause such Registration Statement to be
declared effective within sixty (60) days (forty-five (45) days in the case of a
Form S-3) after the filing referenced in clause (i) above. The Company will keep
the Demand Registration current and effective for at least one hundred twenty
(120) days (such one hundred twenty (120) day period to be calculated without
regard to any Deferral Period), or a shorter period during which the holders
shall have sold all Registrable Securities covered by the Demand Registration.
(b) In the event a holder of Registrable Securities makes a demand to
register pursuant to Section 2.2 and later determines not to sell Registrable
Securities pursuant to such registration, the Company shall cease all efforts to
secure registration for such holder's Registrable Securities and shall take all
action necessary to prevent the commencement of effectiveness for any
registration that it is preparing or has prepared in connection with the
withdrawn request, and such holder's Demand Registration shall be reinstated as
if never exercised; provided, however, that such holder withdrawing such demand
shall pay all of the costs and expenses incurred by the Company in connection
with such withdrawn demand, unless the withdrawal is a result of a breach by the
Company of its obligations under this Agreement.
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(c) National Union shall be entitled to two (2) Demand Registrations
pursuant to Section 2.2, provided that it shall not be entitled to exercise more
than one (1) Demand Registrations during any twelve (12)-month period. TSC, O&G,
ULLICO and BLUM (together with The Common Fund and PB Capital) shall each have
one (1) Demand Registration right pursuant to Section 2.2.
(d) Notwithstanding the provisions of Section 2.2, if the Company is
requested to file any registration under Section 2.2:
(i) The Company shall have the right to defer the filing of a
Registration Statement relating to a Demand Registration during the ninety
(90) days following the effective date of any other Registration Statement
pertaining to an underwritten public offering of securities for the account
of the Company or security holders of the Company or such earlier date as
such distribution shall be completed; or
(ii) The Company shall have the right to defer the filing after
receipt of the Demand Holders request or if a Registration Statement
relating to a Demand Registration has already been filed, the Company may
cause the Registration Statement to be withdrawn and its effectiveness to
be terminated, or may postpone amending or supplementing the Registration
Statement, until the Board of Directors determines that the circumstances
requiring the withdrawal or postponement no longer exist, if, in the
judgment of the Company, (i) it is advisable to suspend use of the
Prospectus for a period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company or (ii) the Board of Directors of the Company
determines in good faith that there is a valid business purpose or reason
for delaying such filing or effectiveness. The Company shall deliver a
certificate in writing, signed by its Chief Executive Officer, Chief
Financial Officer or General Counsel, to the holders of Registrable
Securities, the Special Counsel and the Managing Underwriters, if any, to
the effect of the foregoing and, upon receipt of such certificate, each
such holder's Selling Period will not commence until such holder's receipt
of copies of a supplemented or amended Prospectus, or until it is advised
in writing by the Company that the Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus. The Company will use
all commercially reasonable best efforts to ensure that the use of the
Prospectus may be resumed, and the Selling Period will commence, upon the
earlier of (x) public disclosure of such pending material corporate
development or similar material event or (y) a determination by the Company
that, in the judgment of the Company, public disclosure of such material
corporate development or similar material event would not be prejudicial to
the Company. Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section
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2.2(d)(ii) to defer the commencement of a Selling Period more than sixty
(60) days during any twelve (12)-month period.
(e) A Demand Registration shall not count as such until a Registration
Statement becomes effective; provided, that if, after it has become effective,
the offering pursuant to the Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental authority, such registration shall be deemed not to have been
effected unless such stop order, injunction or other order shall subsequently
have been vacated or otherwise removed within fifteen (15) days of the
imposition thereof.
(f) The Demand Holders shall select the underwriter or underwriters
(including Managing Underwriter) of any offering pursuant to a Demand
Registration, subject to the approval of the Company, which approval shall not
be unreasonably withheld.
SECTION 2.3 Piggyback Registration.
(a) Subject to applicable stock exchange rules and securities regulations,
at least thirty (30) days prior to any public offering of any of its capital
stock of the Company for the account of the Company or any other Person (other
than a Registration Statement on Form S-4 or S-8 (or any successor forms under
the Securities Act), relating solely to employee benefit plans or any
transaction governed by Rule 145 of the Securities Act or Registration Statement
filed pursuant to the Shelf Registration under Section 2.1 of this Agreement or
any substantially comparable shelf registration right granted by the company to
any shareholder not a party to this Agreement), the Company shall give written
notice of such proposed filing and of the proposed date thereof to the holders
and if, on or before the twentieth (20th) day (or such earlier day specified if
registration is for the account of any other Person) following the date on which
such notice is given, (i) a Registration Statement covering the sale of all of
the Registrable Securities is not then effective and available for sales thereof
by the holders and (ii) the Company shall receive written requests from any
holders of Registrable Securities requesting that the Company include among the
securities covered by such Registration Statement any or all of the Registrable
Securities for offering, specifying the amount of Registrable Securities that
such holder intends to sell and such holder's intended method of distribution,
the Company shall include such Registrable Securities in such Registration
Statement, if filed, so as to permit such Registrable Securities to be sold or
disposed of in the manner and on the terms of the offering thereof set forth in
such request. Each such registration shall hereinafter be called a "Piggyback
Registration." The Company shall select the underwriter or underwriters,
including Managing Underwriter, of any offering pursuant to a Registration
Statement filed pursuant to this Section 2.3, provided that any selected
underwriter shall be a well-recognized firm in good standing of national
reputation.
(b) Upon receipt of a request for Piggyback Registration, the Company shall
use all commercially reasonable best efforts to cause all Registrable Securities
which the Company has been requested to register to be registered under the
Securities Act to the extent
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necessary to permit their sale or other disposition in accordance with the
intended methods of distribution specified in the request of such holder;
provided, however, that the Company shall have the right, prior to the effective
date of the Registration Statement, to postpone or withdraw such a registration
effected pursuant to this Section 2.3 without obligation to the holders, other
than the Company's obligation to pay the expenses incurred by the holders in
connection with the registration; provided, further, that if the registration is
pursuant to a Demand Registration, the Company shall only have the right to
defer the registration in accordance with Section 2.2(d). In the event a holder
of Registrable Securities makes a demand to register pursuant to this Section
2.3 and later determines not to sell Registrable Securities pursuant to such
registration, the Company shall cease all efforts to secure registration for
such holder's Registrable Securities.
(c) If such registration being effected pursuant to a Piggyback
Registration is a Company registration or a registration pursuant to an
underwritten offering, the shares of Common Stock available for sale shall be
allocated in accordance with Article III of this Agreement.
(d) No registration effected under Section 2.3 shall relieve the Company of
its obligation to effect a demand registration under Section 2.2, nor shall any
registration under this Section 2.3 be deemed to have been effected under
Section 2.2.
ARTICLE III
UNDERWRITERS' CUTBACK
SECTION 3.1 Underwriter's Cutback.
(a) If, in connection with any underwritten public offering for the account
of the Company, the Managing Underwriter(s) thereof shall impose a limitation on
the number of shares of Common Stock (the "Saleable Number") which may be
included in the Registration Statement that is less than all of the shares of
Common Stock sought to be registered because, in such Managing Underwriter(s)'
commercially reasonable judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distributions, then the number of
shares of Common Stock offered shall be limited to the Saleable Number. The
Company will promptly so advise each holder of Registrable Securities that has
requested registration, and will include shares of Common Stock in such
registration in the following order of priority: (A) the shares of Common Stock
the Company desires to include in such registration up to the total number of
shares sought to be registered; (B) the Registrable Securities that the holders
desire to include in such registration up to the total sought to be registered;
and (C) the balance of securities, if any, to be registered by other holders of
the Company's Common Stock to the extent such security holders have piggyback
registration rights and have sought to include their securities in such
registration, in each case until the aggregate number of shares of Common Stock
included in such registration is equal to the
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number thereof that, in the opinion of such Managing Underwriter(s), can be sold
without adversely affecting the marketability thereof.
(b) If, in connection with any underwritten public offering for the account
of any security holder of the Company exercising its demand registration right
(other than the holder of Registrable Securities), the Saleable Number which may
be included in the Registration Statement is less than all of the shares of
Common Stock sought to be registered because, in the Managing Underwriter(s)'
commercially reasonable judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distributions, then the number of
securities offered shall be limited to the Saleable Number. The Company will
promptly so advise each holder of Registrable Securities that has requested
registration, and will include in such registration in the following order of
priority: (A) the shares of Common Stock sought to be registered by holders of
the Company's Common Stock who have exercised their demand registration right
(to the extent the holders exercising such rights possessed such rights prior to
the date hereof); (B) the Registrable Securities that the holders desire to
include in such registration up to the total sought to be registered and the
shares of Common Stock sought to be registered by holders of the Company's
Common Stock who have exercised their demand registration right (to the extent
the holders exercising such rights obtained such rights on or after the date
hereof); (C) any securities to be registered for the account of the Company
together with the balance of securities, if any, to be registered by other
holders of the Company's Common Stock to the extent such security holders have
piggyback registration rights and have sought to include their securities in
such registration, in each case until the aggregate number of shares of Common
Stock included in such registration is equal to the number thereof that, in the
opinion of such Managing Underwriter(s), can be sold without adversely affecting
the marketability thereof.
(c) If, in connection with any underwritten public offering for the account
of the holders of Registrable Securities pursuant to their Demand Registration
right, as the case may be, the Saleable Number which may be included in the
Registration Statement is less than all of the shares of Common Stock sought to
be registered because, in such underwriter(s)' commercially reasonable judgment,
marketing or other factors dictate such limitation is necessary to facilitate
public distributions, then the Company will promptly so advise each holder of
Registrable Securities that has requested registration, and will include in such
registration in the following order of priority: (A) the Registrable Shares that
the holders who have exercised their Demand Registration right desire to include
in such registration; (B) the shares of Registrable Securities sought to be
registered by holders exercising their Piggyback Registration rights; and (C)
any securities to be registered for the account of the Company together with the
balance of securities, if any, to be registered by other holders of the
Company's Common Stock to the extent such security holders have piggyback
registration rights and have sought to include their securities in such
registration, in each case until the aggregate number of shares of Common Stock
included in such registration is equal to the number thereof that, in the
opinion of such Managing Underwriter(s), can be sold without adversely affecting
the marketability thereof.
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(d) If the number of shares of Common Stock that the Managing
Underwriter(s) advise the Company can be registered is less than all of the
Registrable Securities that the holders have sought to register, each holder
requesting registration pursuant to rights granted under this Agreement shall be
allocated the number of Registrable Securities eligible for registration pro
rata in proportion to the number of Registrable Securities sought to be
registered under the applicable Registration Statement without regard to the
securities held by holders who have not sought registration.
ARTICLE IV
REGISTRATION PROCEDURES
SECTION 4.1 Registration Procedures. In connection with the Company's
registration obligations under Article II hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on the form specified in this Agreement or, if no form has been
specified, on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and use all commercially
reasonable best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that before filing
any such Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the holders of Registrable Securities, the Special Counsel and the
Managing Underwriters of such offering, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
holders of Registrable Securities, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be incorporated
by reference therein and that the Company is required by applicable securities
laws or stock exchange requirements to file) to which the holders of a majority
of the Registrable Securities covered by such Registration Statement or the
Special Counsel shall reasonably object in writing within two (2) full Business
Days after receipt of such materials.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Article II; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar
13
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement as so amended or such Prospectus as so
supplemented.
(c) Notify the selling holders of Registrable Securities, the Special
Counsel and the Managing Underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement, an amendment or a
post-effective amendment to a Registration Statement has been filed with the
SEC, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional information,
and of the contents of such request, (iii) of the issuance by the SEC or any
other federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, provided that the
Company shall not be required to disclose such fact or event if such fact or
event has not been, and is not required to be, publicly disclosed, and (vi) of
the Company's determination that a post-effective amendment to a Registration
Statement or supplement to a Prospectus would be appropriate.
(d) Use all commercially reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If reasonably requested by a holder of Registrable Securities, the
Special Counsel, the Managing Underwriters, if any, or requested by the holders
of a majority of the Registrable Securities being sold, (i) promptly incorporate
in a Prospectus supplement or amendment or post-effective amendment to a
Registration Statement such information as the holders of Registrable
Securities, the Special Counsel, the Managing Underwriters,
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if any, or such holders, in connection with any offering of Registrable
Securities, agree should be included therein as required by applicable law, and
(ii) make all required filings of such Prospectus supplement or such amendment
or post-effective amendment as promptly as is practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, that the Company shall not be
required to take any actions under this Section 4.1(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with or required by
applicable law.
(f) Furnish to each selling holder of Registrable Securities, the Special
Counsel, and each Managing Underwriter, if any, without charge, at least one
conformed copy of the Registration Statement or Statements and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing by such holder, Special Counsel or Managing
Underwriter).
(g) Deliver to each selling holder of Registrable Securities, the Special
Counsel, and each Managing Underwriter, if any, in connection with any offering
of Registrable Securities, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request; and the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify or cooperate with the selling holders of Registrable Securities, the
Managing Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling holder or Managing Underwriter reasonably requests in writing to the
Company; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would subject it
to general service of process in suits or to taxation in any such jurisdiction
where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required solely as a
consequence of the nature of a selling holder of Registrable Securities, in
which case the Company will cooperate in all reasonable respects with the filing
of such Registration Statement and the
15
granting of such approvals, as may be necessary to enable the selling holder or
holders thereof or the Managing Underwriters, if any, to consummate the
disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, promptly notify the holders, Special Counsel and any Managing
Underwrite to discontinue use of such Registration Statement; promptly prepare
and file an amendment or post-effective amendment to each Registration Statement
or a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document (such as a Current Report on
Form 8-K) that would be incorporated by reference into the Registration
Statement so that the Registration Statement shall not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
so that the Prospectus will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use all commercially
reasonable best efforts to cause it to become effective as promptly as is
practicable.
(k) Enter into such agreements (including, in the event of an Underwritten
Offering, an underwriting agreement in form, scope and substance as is customary
in Underwritten Offerings) and take all such other actions in connection
therewith (including, in the event of an underwritten offering, those reasonably
requested by the Managing Underwriters, if any, or the holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into, and if the registration is an
underwritten registration, (i) make such representations and warranties, subject
to the Company's ability to do so, to the holders of such Registrable Securities
and the underwriters with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any, Special Counsel and the holders of a majority of
the Registrable Securities being sold) addressed to each of the underwriters
covering the matters customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
16
requested by such Special Counsel and Managing Underwriters; (iii) obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to be
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to each of
the Managing Underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with Underwritten Offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the holders of a majority of the
Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company.
(l) If requested in connection with a disposition of Registrable Securities
pursuant to a Registration Statement, make available for inspection by a
representative of the holders of Registrable Securities being sold, any Managing
Underwriter participating in any disposition of Registrable Securities, if any,
and any attorney or accountant retained by such selling holders or underwriter,
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Managing Underwriter, attorney
or accountant in connection with such disposition; subject to reasonable written
assurances by each such person that such information will only be used in
connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders earning statements (which need not
be audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than forty-five (45) days after the end of any twelve (12)-month period
(or ninety (90) days after the end of any twelve (12)-month period if such
period is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering, and (ii) if not sold to underwriters in such
an offering, commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of a Registration Statement, which
statements shall cover said twelve (12)-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the selling holders may request.
(o) Use all commercially reasonable best efforts to provide a CUSIP number
for the Registrable Securities not later than the effective date of the
registration.
17
(p) Cause all Registrable Securities covered by the Registration Statement
to be listed on each securities exchange or quotation system on which the
Company's Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(r) Provide and cause to be maintained a transfer agent and registrar for
all Registrable Securities covered by such registration statement from and after
a date not later than the effective date of such Registration Statement.
ARTICLE V
HOLDER'S OBLIGATIONS
SECTION 5.1. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by becoming an owner or
transferee of any Registrable Securities, that no holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such holder has furnished the Company with any applicable notice required
pursuant to Article II hereof (including the information required to accompany
such notice) and, promptly after the Company's request, such other information
regarding such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not misleading. Any sale of any
Registrable Securities by any holder shall constitute a representation and
warranty by such holder that the information relating to such holder and its
plan of distribution is as set forth in the Prospectus delivered by such holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
18
(b) The Company agrees (x) that if any holder of Registrable Securities
shall send a written notice to the Company of an intended distribution of
Registrable Securities under the Shelf Registration pursuant to Section 2.1(d)
or the Demand Registration pursuant to Section 2.2, the Company shall not sell,
make any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
securities during the period from first day of the applicable Selling Period
until the date that is ninety (90) days after the date when such holder shall
have made such distribution of Registrable Securities under the Shelf
Registration or Demand Registration, as the case may be, as the holder or
Managing Underwriter (in the case of an Underwritten Offering) shall advise the
Company (provided, that if the holder or Managing Underwriter shall fail to
advise the Company of any such date prior to the end of the applicable Selling
Period, such period shall end on the last day of the applicable Selling Period),
except (i) as part of such registration, (ii) pursuant to registrations on Form
S-4 or S-8 or any successor or similar forms thereto or (iii) as otherwise
permitted by the Managing Underwriter of such offering (if any), and (y) to use
all commercially reasonable best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or exercisable for
any of such securities, in each case purchased from the Company at any time
after the date of this Agreement (other than in a public offering) to agree not
to sell, make any short sale of, loan, grant any option for the purchase of,
effect any public sale or distribution of or otherwise dispose of such
securities during such period except as part of such underwritten registration;
provided, that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties regarding
such holder and such holder's intended method of distribution.
(c) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, upon being notified by the Company promptly discontinue use of such
Registration Statement until the Company in accordance with its obligations
under this Agreement prepares and files an amendment or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain any untrue statement
of a material fact or omit to state any material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein,
19
in the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder.
(d) Deliver to prospective investors and investors copies of the Prospectus
or Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto in accordance
with the Securities Act and applicable state securities laws.
ARTICLE VI
EXPENSES
SECTION 6.1 Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) with respect to compliance with federal securities or Blue
Sky laws (including, without limitation, fees and disbursements of Special
Counsel in connection with Blue Sky qualifications of the Registrable Securities
laws of such jurisdictions as the Managing Underwriters, if any, or holders of a
majority of the Registrable Securities being sold may designate)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company and of printing Prospectuses if the printing of Prospectuses is
requested by the Special Counsel or the holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) reasonable fees and disbursements of counsel for the
Company and the Special Counsel in connection with the Registration, (v) fees
and disbursements of all independent certified public accountants (including the
expenses of any special audit and "comfort" letters required by or incident to
such performance) and (vi) Securities Act liability insurance obtained by the
Company in its sole discretion. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or interim review of financial statements, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of this
Section 6.1, each seller of Registrable Securities shall pay all registration
expenses to the extent the Company is prohibited by applicable Blue Sky laws
from paying for or on behalf of such seller of Registrable Securities.
ARTICLE VII
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INDEMNIFICATION
SECTION 7.1 Company Indemnification. The Company agrees to indemnify and
hold harmless each holder of Registrable Securities whose Registrable Securities
are covered by any Registration Statement, its directors and officers and each
other Person, if any, who controls such holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such securities were registered under the Securities Act, any
preliminary Prospectus, final Prospectus or summary Prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse each such indemnified party for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement, any such
preliminary Prospectus, final Prospectus, summary Prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such holder specifically for use in the
preparation thereof. In addition, the Company shall indemnify any underwriter of
such offering and each other Person, if any, who controls any such underwriter
within the meaning of the Securities Act in substantially the same manner and to
substantially the same extent as the indemnity herein provided to each
Indemnified Party. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any such
director, officer, underwriter or controlling person and shall survive the
transfer of such securities by such holder.
SECTION 7.2 Seller Indemnification. Each prospective seller of Registrable
Securities hereunder severally, and not jointly, shall indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section 7.1)
the Company, each director of the Company, each officer of the Company and each
other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any preliminary
Prospectus, final Prospectus or summary Prospectus contained therein, or any
amendment or supplement thereof, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller
specifically for use in the preparation of such Registration Statement,
preliminary Prospectus, final Prospectus, summary Prospectus or amendment or
supplement. Any such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any such director,
officer or controlling person and
21
shall survive the transfer of such securities by such seller. The amount payable
by any prospective seller of Registrable Securities with respect to the
indemnification set forth in this Section 7.2 in connection with any offering of
Registrable Securities will not exceed the amount of the gain realized by such
prospective seller pursuant to such offering.
SECTION 7.3 Indemnification Procedure. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding sections of this Article VII,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding sections of this Article VII, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying party shall, without the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement of any such action which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation. No
indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
SECTION 7.4 Remedies.
(a) If the indemnification provided for in Section 7.1 or 7.2, as the case
may be, is unavailable to an indemnified party in respect of any expense, loss,
claim, damage or liability referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such expense, loss, claim,
damage or liability (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the holder or
underwriter, as the case may be, on the other from the distribution of the
Registrable Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the holder or underwriter,
as the case may be, on the other in connection with the statements or omissions
which resulted in such expense, loss, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the Company on the one
hand and of the holder or underwriter, as the case may be, on the
22
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by the holder or
by the underwriter and parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the proviso contained in the first sentence of
subdivision (a) of this Section 7.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (d) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.5 had been available under the circumstances.
(b) The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7.4
were determined by pro rata allocation (even if the holders and any underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph (a). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
(c) Notwithstanding the other provisions of this Section 7.4, no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder, the gain
realized by such holder from the sale of Registrable Securities or (ii) in the
case of an underwriter, the total price at which the Registrable Securities
purchased by it and distributed to the public were offered to the public
exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE VIII
REPORTS
SECTION 8.1 Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder and will take such further action as any holder of Registrable
Securities may
23
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements. The
Company further covenants that it will cooperate with any holder of Registrable
Securities and take such further reasonable action as any holder of Registrable
Securities may reasonably request (including, without limitation, making such
reasonable representations as any such holder may reasonably request), all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A, as applicable, under the
Securities Act.
(b) For so long as any shares of Registrable Securities are Restricted
Securities within the meaning of Rule 144(a)(3) under the Securities Act, the
Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) of the Exchange Act, make available to any holder
of Registrable Securities in connection with the sale by such holder of
Registrable Securities and any prospective purchaser of Registrable Securities
from such, in each case upon request, the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Securities Act.
(c) The Company shall file the reports required to be filed by it under the
Exchange Act and shall comply with all other eligibility requirements for use of
Form S-3 set forth in the instructions to Form S-3 (other than Registration
Requirement A.5).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 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
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: Robert Band, President
Facsimile: (508) 628-2960
with a copy to:
24
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: Richard A. Soden, Esq.
Facsimile: (617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: Ronald N. Tutor
Facsimile: (818) 367-9574
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: Eric R. Markus
Facsimile: (202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: Christopher H. Lee
Chris Saxman
Facsimile: (212) 458-2250
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: John P. Hornbostel
Facsimile: (212) 363-8596
O&G:
25
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: Raymond Oneglia
Kenneth Merz
Facsimile: (860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile: (860) 240-6150
BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: Murray Indick
Facsimile: (415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
26
Washington, D.C. 2001
Attn: Robert Kennedy
Facsimile: (202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: Alan J. Barton
Facsimile: (213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 9.2 Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto or
their successors in interest, except as expressly otherwise provided herein.
SECTION 9.3 Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
SECTION 9.4 Specific Performance. Without limiting the rights of each party
hereto to pursue all other legal and equitable rights available to such party
for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 9.5 Governing Law; Consent to Jurisdiction . This Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of New York. Each of the parties hereto 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 parties 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 9.1 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 parties hereto 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
27
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 9.6 WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.7 Limitations on Damages. Each party hereto acknowledges that,
except as provided in this Agreement, no party is entitled to seek or recover
consequential, punitive or exemplary damages in respect of this Agreement under
any circumstances or for any reason. Consequential damages are, without
limitation, lost profits, lost revenue and the like but do not include the
actual costs incurred in obtaining substitute performance where there has been a
failure to perform an obligation under any provision of this Agreement.
SECTION 9.8 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.
SECTION 9.9 Amendments to Laws. Any reference to a section, form, rule or
regulation of the Securities Act or Exchange Act, includes any successor
section, form, rule, regulation or law.
SECTION 9.10 Counterparts. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute one and the same instrument.
SECTION 9.11 Entire Agreement. Each party expressly acknowledges and agrees
that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Shareholders' Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section13(d) of the Exchange Act),
or otherwise act together, with respect to the Company or its securities.
SECTION 9.12 Amendment and Waiver. No provision of this Agreement may be
waived except by an instrument in writing signed by the party against whom the
waiver is to be effective. No provision of this Agreement may be amended or
modified except by an instrument in writing signed by holders of a majority of
Registrable Securities or as otherwise provided in this Agreement, provided,
that no such amendment
28
may adversely affect the rights of any holder of Registrable Securities unless
signed by such holder.
SECTION 9.13 No Third Party Beneficiaries. Nothing in this Agreement shall
convey any rights upon any person or entity which is not a party or a transferee
of or successor to a party to this Agreement.
SECTION 9.14 Effectiveness. This Agreement shall become effective
immediately at such time when Closing under the Securities Purchase Agreement
shall occur.
SECTION 9.15 No Prior Agreements; No Inconsistent Agreements.
(a) The Company, BLUM, The Common Fund, PB Capital and ULLICO hereby agree
that this Registration Rights Agreement supercedes and replaces all prior
agreements between or among those Persons relating to registration rights.
(b) The Company has not entered into and will not enter into any
registration rights agreement or similar arrangements the performance by the
Company of the terms of which would in any manner conflict with, restrict or be
inconsistent with the performance by the Company of its obligations under this
Agreement.
[remainder of page intentionally left blank]
29
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be duly
executed by its authorized officer as of the day and year first above written.
PERINI CORPORATION
By: /s/Robert Band
Name: Robert Band
Title: President
TUTOR-SALIBA CORPORATION
By: /s/Ronald N. Tutor
Name: Ronald N. Tutor
Title: President and Chief Executive Officer
RONALD N. TUTOR
/s/Ronald N. Tutor
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By: /s/David B. Pinkerton
Name: David B. Pinkerton
Title: Vice President
O&G INDUSTRIES, INC.
By: /s/Raymond R. Oneglia
Name: Raymond R. Ongelia
Title: Vice Chairman
30
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By: /s/Murray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P., its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By: /s/Murray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P., its investment advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By: /s/Murray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
31
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: /s/Joseph Linehan
Name: Joseph Linehan
Title: Vice President, Securities
32
Exhibit 4.2
SHAREHOLDERS' AGREEMENT
dated as of March 29, 2000
among
TUTOR-SALIBA CORPORATION,
RONALD N. TUTOR,
O&G INDUSTRIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.,
BLUM CAPITAL PARTNERS, L.P.
PB CAPITAL PARTNERS, L.P.,
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS,
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P,
and
PERINI CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I Definitions.............................................................................................1
SECTION 1.01 Definitions..............................................................1
SECTION 1.02 Other Terms..............................................................6
ARTICLE II Shares Subject to this Agreement; Transfers............................................................7
SECTION 2.01 Shares Subject to this Agreement.........................................7
SECTION 2.02 Restrictions on Transfer.................................................7
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings....................8
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs................8
SECTION 2.05 Attempted Transfers in Violation of this Agreement.......................9
SECTION 2.06 Legend...................................................................9
ARTICLE III Put Rights...........................................................................................11
SECTION 3.01 Put Option..............................................................11
SECTION 3.02 Put Period..............................................................11
SECTION 3.03 Put Notice..............................................................11
SECTION 3.04 Put Price...............................................................11
SECTION 3.05 Put Closing.............................................................11
SECTION 3.06 Assignment of Put Option................................................12
SECTION 3.07 RNT Obligation Under Put Option.........................................12
SECTION 3.08 Put Postponement........................................................12
SECTION 3.09 Exercise of Put Option Not a Transfer...................................12
ARTICLE IV Call Rights...........................................................................................13
SECTION 4.01 Call Option.............................................................13
SECTION 4.02 Call Period.............................................................13
SECTION 4.03 Call Notice.............................................................13
SECTION 4.04 Call Price..............................................................13
SECTION 4.05 Call Closing............................................................13
SECTION 4.06 Assignment of Call Option...............................................14
SECTION 4.07 Call Postponement.......................................................14
SECTION 4.08 Exercise of Call Option Not a Transfer..................................14
ARTICLE V Rights of First Refusal................................................................................14
SECTION 5.01 Right of First Refusal on Transfers.....................................14
SECTION 5.02 Notice of Intent to Purchase............................................15
SECTION 5.03 Offered Shares Closing..................................................15
SECTION 5.04 Sale to Third Party.....................................................16
SECTION 5.05 Limitation as to National Union.........................................16
ARTICLE VI Tag-Along Rights......................................................................................16
SECTION 6.01 Tag-Along Option........................................................16
SECTION 6.02 Sale to Third Party.....................................................17
SECTION 6.03 Limitation as to National Union.........................................17
i
ARTICLE VII The Company's Board Of Directors; Publicity..........................................................17
SECTION 7.01 Nominees................................................................17
SECTION 7.02 Voting for Election of Directors........................................19
SECTION 7.03 Vacancy; Removal........................................................19
SECTION 7.04 Continuation as Director................................................19
SECTION 7.05 Publicity...............................................................19
SECTION 7.06 Observer Rights for Shareholder Designee................................20
SECTION 7.07 Subscription Rights.....................................................20
ARTICLE VIII Miscellaneous.......................................................................................21
SECTION 8.01 Injunctive Relief.......................................................21
SECTION 8.02 Entire Agreement........................................................21
SECTION 8.03 Binding Effect; Benefit.................................................21
SECTION 8.04 Assignability...........................................................22
SECTION 8.05 Amendment; Waiver; Termination..........................................22
SECTION 8.06 Notices.................................................................22
SECTION 8.07 Fees and Expenses.......................................................24
SECTION 8.08 Headings................................................................25
SECTION 8.09 Counterparts............................................................25
SECTION 8.10 Governing Law; Consent to Jurisdiction..................................25
SECTION 8.11 Limitations on Damages..................................................25
SECTION 8.12 Severability............................................................25
SECTION 8.13 Amendments to Laws......................................................25
SECTION 8.14 No Third Party Beneficiaries............................................25
SECTION 8.15 Mutual Drafting.........................................................26
SECTION 8.16 Further Representations.................................................26
ii
SHAREHOLDERS' AGREEMENT dated as of March 29, 2000 (the "Agreement"), by
and among Tutor-Saliba Corporation, a California corporation ("TSC"), Ronald N.
Tutor ("RNT"), National Union Fire Insurance Company of Pittsburgh, Pa., a
Pennsylvania corporation ("National Union"), O&G Industries, Inc., a Connecticut
corporation ("O&G"), BLUM Capital Partners, L.P., a California limited
partnership ("BLUM"), PB Capital Partners, L.P., a Delaware limited partnership
("PB Capital"), The Common Fund for Non-Profit Organizations, a New York
non-profit corporation ("The Common Fund"), and The Union Labor Life Insurance
Company, a Maryland corporation acting on behalf of its Separate Account P
("ULLICO"), and Perini Corporation, a Massachusetts corporation (the "Company").
Except to the extent a signatory hereto is explicitly excluded from the
application of particular provisions of this Agreement as specified below, TSC,
National Union, O&G, BLUM, PB Capital, The Common Fund and ULLICO are
collectively referred to as the "Shareholders". O&G, BLUM, PB Capital, The
Common Fund and ULLICO shall each be a party to this Agreement solely for
purposes of Sections 2.04, 2.05 and 2.06 and Articles VI, VII and VIII. The
Company shall be a party to this Agreement solely for purposes of Sections 2.03,
2.04, 2.05 and 2.06 and Articles VII and VIII.
W I T N E S S E T H :
WHEREAS, pursuant to the Securities Purchase Agreement (as defined below)
TSC, National Union and O&G have agreed to acquire securities of the Company;
and
WHEREAS, RNT is the sole shareholder of TSC; and
WHEREAS, the parties hereto desire to enter into this Agreement to govern
certain of their relative rights, duties and obligations after consummation of
the transactions contemplated by the Securities Purchase Agreement; and
WHEREAS, O&G, BLUM, PB Capital, The Common Fund and ULLICO have agreed to
become parties to this Agreement to govern certain restricted transfers as set
forth in Sections 2.04, 2.05 and 2.06, to provide tag-along rights and
obligations as set forth in Article VI and to provide certain rights and
obligations with respect to the election of directors, observer status and
subscription as set forth in Article VII only.
NOW, THEREFORE, the Shareholders having authorized the execution and
delivery of this Shareholders' Agreement as required by the laws of the
jurisdiction in which each is incorporated or organized, as the case may be, and
intending to be bound hereby, agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions. The following terms used in this Agreement have the
following meanings:
(a) "Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, pro-
1
vided that no security holder of the Company shall be deemed an Affiliate of any
other security holder solely by reason of any investment in the Company.
(b) "Beneficially Own" shall have the meaning set forth in Rules 13d-3 or
16a-1 of the Exchange Act.
(c) "BLUM" has the meaning ascribed to it in the introductory paragraph to
this Agreement.
(d) "Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are required or authorized by law to
close.
(e) "Call Event" means the proposed Transfer of Put/Call Shares to a bona
fide purchaser through a registered public offering pursuant to registration
rights granted under the Registration Rights Agreement.
(f) "Call Return" means 14% per annum.
(g) "Closing" means the Closing as defined in the Securities Purchase
Agreement.
(h) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(i) "The Common Fund" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(j) "Common Stock" means the common stock, par value $1.00 per share, of
the Company.
(k) "Company" has the meaning ascribed to it in the introductory paragraph
of this Agreement.
(l) "Control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the power, direct or indirect, (i) to vote or
direct the voting of more than 50% of the outstanding shares of voting
securities of such Person, or (ii) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise, except
that no change of control will be deemed to have occurred as a result of
customary rights granted in any indenture, credit agreement or other agreement
or instrument unless and until there has been a default under the terms of that
agreement and the lender exercises the rights granted therein.
(m) "Covered Common Stock" means the shares of Common Stock of the Company
purchased by a Shareholder pursuant to the Securities Purchase Agreement or
otherwise owned by a Shareholder on the date hereof.
(n) "Definitive Agreements" mean this Agreement and the Securities Purchase
Agreement, each as amended, modified or supplemented from time to time.
2
(o) "Distributable Property-in-Kind" means Property-in-Kind (other than
Property-in-Kind that has been included in the calculation of Distributions)
distributed or declared for distribution to a Shareholder on account of any
Shares or other securities distributed in kind on account of Shares.
(p) "Distributions" mean (i) all cash dividends declared and paid on
account of any Share, plus (ii) the cash proceeds received by a Shareholder from
the sale of Property-in-Kind (minus all costs incurred by the Shareholder in
connection with the sale, including attorneys fees and expenses), plus (iii) the
Fair Market Value of any Property-in-Kind received by the Shareholder in
exchange for Shares.
(q) "Equity Security" means (i) any Common Stock or other Voting
Securities, (ii) any securities of the Company convertible into or exchangeable
for Common Stock or other Voting Securities or (iii) any options, rights or
warrants (or any similar securities) issued by the Company to acquire Common
Stock or other Voting Securities, in each case whether preferred or common, of
any class or series, outstanding prior to or any time after the date of this
Agreement.
(r) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(s) "Fair Market Value" means (i) with respect to any security listed on a
national securities exchange or quoted on the National Association of Securities
Dealers, Inc. National Market System, the average of the daily closing prices on
the American Stock Exchange (or the principal exchange or automated trading
system on which such security may be listed or may trade) for the twenty (20)
consecutive trading days commencing on the fifth (5th) trading day prior to the
date as of which the Fair Market Value is being determined, and (ii) with
respect to any security other than one described in clause (i) or any other
property or assets, the Fair Market Value shall be the fair market value of such
security or property established by two independent investment banking firms
with national reputations, one of who will be selected by the Put Purchaser or
Call Purchaser, as the case may be, and one of whom will be selected by the Put
Seller or Call Seller, as the case may be. If the two investment banking firms
arrive at fair market values that differ by more than 10%, the two investment
banking firms shall select a third investment banking firm with a national
reputation. The Fair Market Value shall be equal to the average of the two
appraisals closest in value to each other in the case of three appraisals, or
the average of the two appraisals if there is not a third appraisal. The closing
price referred to in clause (i) for each day shall be the closing price, if
reported, or, if the closing price is not reported, the average of the closing
bid and asked prices as reported by the Nasdaq National Market (or such
principal exchange or market) or a similar source selected from time to time by
the Company for quotation of its Common Stock. In the event the closing prices
required by clause (i) are unavailable, Fair Market Value shall be determined
based on the ten (10) consecutive trading days commencing on the fifth (5th)
trading day prior to the relevant date or, if such closing prices are
unavailable, Fair Market Value shall be determined as provided in clause (ii).
(t) "Initial Investment per Share" means the $4.25 per Share paid by
National Union for the Covered Common Stock under the Securities Purchase
Agreement, as
3
adjusted for any subsequent common stock dividends, stock splits, reverse stock
splits or other similar transactions.
(u) "National Union" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(v) "New Security" means any Equity Security proposed to be issued by the
Company after the Closing; provided that "New Security" shall not include (i)
any securities issuable upon conversion of any convertible Equity Security, (ii)
any securities issuable upon exercise of any option, warrant or other similar
Equity Security, (iii) any securities issuable in connection with any stock
split, stock dividend or recapitalization of the Company where such securities
are issued to all stockholders of the Company on a pro rata basis, (iv) any
securities issued to officers, employees or directors of the Company or any of
its Subsidiaries pursuant to any Board-approved officer, employee or director
benefit plan or arrangement, (v) any securities issued in connection with any
transaction whereby the Company acquires the stock, assets or business of a
third party not prohibited by this Agreement, or (vi) any security issued in any
public offering registered under the Securities Act .
(w) "O&G" has the meaning ascribed to it in the introductory paragraph of
this Agreement.
(x) "PB Capital" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(y) "Person" means and includes an individual, a partnership, a joint
venture, a corporation, a trust, a limited liability company, an unincorporated
organization, any foreign, federal, state or local court or tribunal or
administrative, governmental or regulatory body, agency commission, division,
department, public body or other authority, or any other organization or entity.
(z) "Pro Rata Share" means, as to any Shareholder or Permitted Transferee,
the fraction of an entire issuance of New Securities, the numerator of which
shall be the sum of (w) the number of shares of Common Stock owned by such
Shareholder or Permitted Transferee immediately prior to such issuance of such
New Securities plus (x) the number of shares of Common Stock into which then
outstanding convertible securities (including, without limitation, options and
warrants) owned by such Shareholder or Permitted Transferee are then exercisable
or convertible, and the denominator of which shall be the sum of (y) the
aggregate number of shares of Common Stock outstanding immediately prior to such
issuance of such New Securities plus (z) the number of shares of Common Stock
into which then outstanding convertible securities (including, without
limitation, options and warrants) are then exercisable or convertible.
(aa) "Property-in-Kind" means securities, personal property or other assets
(other than cash or additional shares of Common Stock) distributed to a
Shareholder on account of Shares or other securities distributed in kind on
account of Shares, whether through a dividend, recapitalization, reorganization,
merger or similar transaction.
4
(bb) "Put Event" means (i) a change of Control of the Company; (ii) a
change of Control of TSC; (iii) one or more Transfers (other than a Transfer to
a Permitted Transferee) by TSC and its Permitted Transferees of shares of Common
Stock such that RNT fails to have sole direct or indirect Beneficial Ownership
of at least 10% of the outstanding Common Stock of the Company (for purposes
hereof, the voting securities of the Company Beneficially Owned, directly or
indirectly, by TSC shall be deemed solely Beneficially Owned indirectly by RNT),
(iv) RNT shall not be involved in the management of the Company or TSC, (v)
breach of any provisions of the Definitive Agreements arising out of the sole
actions of RNT or TSC; (vi) an order shall be entered by a court of competent
jurisdiction finding the Company to be bankrupt or insolvent, ordering or
approving liquidation or reorganization of the Company or appointing a receiver
for all or substantially all of the property of the Company and such order shall
not be vacated or stayed within 60 days, or an assignment shall be made by the
Company for the benefit of its creditors; or (vii) acceleration of payment of a
material principal amount of the senior debt of the Company. No Transfer of any
security of the Company by National Union or any Permitted Transferee or
Co-investor shall constitute or give rise to a Put Event hereunder.
(cc) "Put Return" means 10% per annum.
(dd) "Put/Call Shares" means up to 50% of the Shares purchased by National
Union at Closing, which Shares (including Shares issued on account of any
subsequent Common Stock dividends, stock splits, reverse stock splits or other
similar transactions relating thereto) shall bear the legends set forth in
subsections 2.06(a) and (b) and which shall be represented by a certificate
separate and distinct from any Shares held by National Union or its Permitted
Transferee, if any, that are not identically legended, and (ii) Shares
represented by certificates issued to replace the certificate(s) referred to in
the preceding clause; provided, however, that the Put/Call Shares shall not
include Shares Transferred in accordance with Article V (except as provided in
Section 5.04) or Article VI (except as provided in Section 6.02) of this
Agreement. Shares shall cease to be Put/Call Shares upon the lapse or
termination of the Put Option or Call Option.
(ee) "Registration Rights Agreement" means that certain Registration Rights
Agreement dated even date herewith among the Company, TSC, National Union and
O&G, as amended, modified or supplemented from time to time.
(ff) "ROFR Shares" means: (i) as to National Union, its Permitted
Transferees and any Co-Investors, any Put/Call Shares owned by such party
(including Shares issued on account of any subsequent Common Stock dividends,
stock splits, reverse stock splits or other similar transactions relating
thereto), and (ii) as to TSC and its Permitted Transferees, any Shares owned by
such party immediately following the Closing (including Shares issued on account
of any subsequent Common Stock dividends, stock splits, reverse stock splits or
other similar transactions relating thereto).
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Securities Act" means the Securities Act of 1933, as amended.
5
(ii) "Securities Purchase Agreement" means that certain Securities Purchase
Agreement dated as of February 5, 2000 entered into by and among the Company,
TSC, National Union and O&G relating to the purchase and sale of Covered Common
Stock, as amended, modified or supplemented from time to time.
(jj) "Shareholder" has the meaning ascribed to it in the introductory
paragraph to this Agreement and also includes any Permitted Transferee, whether
in connection with its execution and delivery as of the date hereof, or
otherwise, so long as such Person Beneficially Owns any Shares and the Agreement
has not terminated.
(kk) "Shares" means shares of Covered Common Stock as adjusted for stock
splits, reverse stock splits and Common Stock dividends declared and paid on
account of Covered Common Stock and similar transactions.
(ll) "Subsidiary" means any Person of which a Shareholder or Permitted
Transferee shall now or hereafter own or be owned by, directly or indirectly,
through one or more Subsidiaries or otherwise, a Person holding equity interests
representing 100% of the voting securities of such Person.
(mm) "Target Investment Value per Share" means, as of the date of any Put
Notice or Call Notice, the amount to be paid to National Union or its Permitted
Transferee, if any, such that the internal rate of return (calculated on an
annual basis) on National Union's Initial Investment per Share, taking into
account Distributions, shall be equal to the Put Return or Call Return, as the
case may be.
(nn) "Trading Day" with respect to a securities exchange or automated
quotation system means a day on which such exchange or automated quotation
system is open and conducting business.
(oo) "Transfer" (including with correlative meanings, the terms
"transferring" and "transferred") means the direct or indirect sale, assignment,
transfer, grant of a participation or derivative interest in, pledge or other
disposition of any Shares (or solicitation of any offers to buy or otherwise
acquire, or take a pledge of, any Shares).
(pp) "ULLICO" has the meaning ascribed to it in the introductory paragraph
of this Agreement.
(qq) "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.
SECTION 1.02 Other Terms. Each of the following terms is defined in the
Section set forth opposite such term:
Term Section
---- -------
Assignee 3.07
Call Closing 4.05
Call Notice 4.04
6
Call Option 4.01
Call Period 4.02
Call Postponement 4.07
Call Price 4.05
Call Purchaser 4.01
Call Seller 4.01
Co-Investor 2.03
Disposing Shareholder 6.01
NOLs 2.04
Offer 5.01
Offered Shares 5.01
Offered Shares Closing 5.03
Permitted Transferee 2.03
Proposed Transferee 5.01
Public Offering 2.03
Purchasing Shareholder 5.02
Put Closing 3.06
Put Event Period 3.02
Put Notice 3.04
Put Option 3.01
Put Period 3.02
Put Price 3.05
Put Postponement 3.09
Put Purchaser 3.01
Put Seller 3.01
Selling Shareholder 5.01
Subscription Notice 7.07
ARTICLE II
Shares Subject to this Agreement; Transfers
SECTION 2.01 Shares Subject to this Agreement. Except as otherwise provided
in any Article of this Agreement, the Shares owned by any Shareholder, Permitted
Transferee or Co-Investor from time to time shall be subject to this Agreement.
Shares transferred by any Shareholder, Permitted Transferee or Co-Investor shall
not be entitled to the benefits of, or subject to the obligations in, this
Agreement unless otherwise expressly provided for in this Agreement.
SECTION 2.02 Restrictions on Transfer. No Shareholder, Permitted Transferee
or Co-Investor may, directly or indirectly, Transfer to third parties or any
other shareholder of the Company, any Shares (including, in the case of National
Union or its Permitted Transferee, the Put/Call Shares), in whole or in part,
unless both (i) such Shares are Transferred pursuant to Section 2.04 of this
Agreement, and (ii) such Shares are Transferred, directly or indirectly, in
accordance with Articles III, IV, V and VI of this Agreement to the extent such
provisions are
7
applicable. For purposes hereof, an indirect Transfer shall include the Transfer
of Control of any Shareholder except where the indirect transferee is a
Permitted Transferee.
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings.
(a) A "Permitted Transferee" shall mean, as to any Shareholder, (i) a
Subsidiary of such Shareholder, (ii) any Person that owns, directly or
indirectly, 100% of the outstanding capital stock of such Shareholder or (iii) a
Subsidiary of a person described in clause (ii). A Shareholder shall be
permitted to Transfer up to 100% of its Shares to a Permitted Transferee without
first complying with any provisions of this Agreement other than Sections 2.04
and 2.05. A Permitted Transferee shall be entitled to the benefits of, and be
subject to the obligations in, this Agreement. A Permitted Transferee shall be
required to execute and deliver a counterpart of this Agreement and such other
agreements as the Shareholders and the Company shall reasonably request agreeing
to be bound hereby and such Permitted Transferee shall be deemed to be a
Shareholder hereunder and a party to this Agreement.
(b) A "Co-Investor" shall mean any Person (other than a Permitted
Transferee or a purchaser in a bona fide registered public offering) to which
any Shareholder, Permitted Transferee or Co-Investor Transfers Shares.
Notwithstanding anything herein to the contrary, (x) a Co-Investor shall have no
rights or obligations under Articles III, IV, V or VI of this Agreement (except
as otherwise provided in Sections 5.04 or 6.02), and (y) a Co-Investor shall
have no rights to nominate a director under Article VII but shall be subject to
the voting requirements of Sections 7.02 and 7.03 thereof.
(c) A Shareholder shall be permitted to Transfer up to 100% of its Shares
(other than Put/Call Shares) to a bona fide purchaser through a registered
public offering pursuant to registration rights granted under the Registration
Rights Agreement (a "Public Offering") without first complying with any
provisions of this Agreement other than Sections 2.04 and 2.05 and Articles V
and VI. Persons who acquire their Shares in a Public Offering shall not have any
rights or obligations under this Agreement and shall not become parties hereto.
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.
Notwithstanding any other provision of the Agreement to the contrary, to
preserve the Company's ability to fully utilize its net operating loss
carryforwards ("NOLs"), which each Shareholder deems to be a material favorable
attribute of its investment in the Equity Securities of the Company, each of the
Shareholders, their Permitted Transferees and the Co-Investors agrees that it
will not purchase or sell any Equity Securities of the Company during the
three-year period commencing on the Closing Date unless it meets each of the
following four conditions:
(a) Such Shareholder, Permitted Transferee or Co-Investor shall notify each
of the Company and the other parties hereto in writing at least fifteen (15)
Business Days in advance of any proposed purchase or sale;
(b) Other than with respect to Put/Call Shares being Transferred in
accordance with Article III or IV of this Agreement, all the other Shareholders
shall be given the opportunity to participate in any proposed purchase or sale
in proportion to the amount of Equity
8
Securities of the Company held by such Shareholder as of the date of the notice
referred to in clause (a);
(c) Each Shareholder, Permitted Transferee or Co-Investor shall consummate
any proposed purchase or sale only to the extent that tax advisors for the
Company (or in the alternative, tax advisors retained by the selling party
reasonably acceptable to the Company and the Shareholders) have provided the
Company with written advice that the proposed purchase or sale will not impair
the ability of the Company to fully utilize its remaining NOLs; the Company
shall use commercially reasonable efforts to obtain tax advice referred to in
this clause (c) from its tax advisors and shall cooperate with the reasonable
requests for information from the Shareholders or their respective tax advisors
retained pursuant to this clause (c); and
(d) Each Permitted Transferee and Co-Investor shall execute and deliver a
counterpart of this Agreement or such other agreements as the Shareholders and
the Company shall reasonably request as to the existence and enforceability of
Sections 2.04 and 2.05 and such Permitted Transferee or Co-Investor shall be
deemed to be a Shareholder hereunder and a party to this Agreement for such
purposes.
In addition, each of the Shareholders and their respective Permitted
Transferees agrees that during the three year period commencing on the Closing
Date, it will - and it will use commercially reasonable efforts to cause any
director designated by it to - vote against any issuance or redemption of Equity
Securities by the Company if such issuance or redemption would impair the
ability of the Company to fully utilize its remaining NOLs unless such issuance
or redemption is authorized by Shareholders and their Permitted Transferees
holding at least two-thirds of the Shares then held by such persons.
SECTION 2.05 Attempted Transfers in Violation of this Agreement. Any
attempt by a Shareholder, Permitted Transferee or Co-Investor to transfer Equity
Securities of the Company or any interest therein, directly or indirectly, to
any Person in violation of any provision of this Agreement shall be void ab
initio and the Company shall have no obligation to, and shall refuse to,
register such Equity Securities of the Company in the name of the transferee and
the transferee shall have no rights with respect to such Equity Securities.
SECTION 2.06 Legend.
(a) In addition to any other legend that may be required pursuant to the
Securities Purchase Agreement or otherwise, each certificate for the Shares that
is issued to any Shareholder shall bear a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER (INCLUDING RIGHTS OF FIRST REFUSAL AND
TAG-ALONG RIGHTS), ALL AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT
DATED AS OF MARCH 29, 2000. THE HOLDER OF THIS CERTIFICATE MAY REQUEST
A COPY OF THE SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF
WHICH THE COMPANY WILL
9
MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5)
DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE
COMPANY."
(b) In addition to any other legend that may be required, each certificate
for the Put Shares that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
PUT AND CALL OPTIONS AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT DATED
AS OF MARCH 29, 2000 AND ARE NOT TRANSFERABLE EXCEPT AS PERMITTED
UNDER THAT AGREEMENT. THE HOLDER OF THIS CERTIFICATE MAY REQUEST A
COPY OF THE SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF WHICH
THE COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE
SECRETARY OF THE COMPANY."
(c) In addition to any other legend that may be required, each certificate
for Equity Securities that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER IN ORDER TO PRESERVE THE COMPANY'S
ABILITY TO UTILIZE ITS NET OPERATING LOSS CARRYFORWARDS AS SET FORTH
IN THE SHAREHOLDERS' AGREEMENT DATED AS OF MARCH 29, 2000 AND ARE NOT
TRANSFERABLE EXCEPT AS PERMITTED UNDER THAT AGREEMENT. THE HOLDER OF
THIS CERTIFICATE MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL MAIL TO THE HOLDER
OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT
OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE COMPANY.
(d) The same legends shall be placed on all certificates for Shares and
other Equity Securities, as the case may be, that are or become subject to this
Agreement. The failure to place legends on a certificate shall not affect the
application of this Agreement to the Shareholders.
(e) If any Shares shall cease to be subject to the restrictions on Transfer
under this Article II, the holder may request that the Company remove the legend
set forth in Section 2.06(a) or, if the Shares shall cease to be Put/Call
Shares, the holder may request
10
the Company to remove the legend set forth in Section 2.06(b), or, if
Equity Securities shall cease to be subject to the restrictions on
Transfer set forth in Section 2.04, the holder may request the Company
to remove the legend set forth in Section 2.06(c)and issue a new
certificate evidencing such Equity Securities without the applicable
legend required to be endorsed thereon, if such legend is no longer
applicable.
ARTICLE III
Put Rights
SECTION 3.01 Put Option. Subject to Section 2.04 (other than subsection
2.04(b)), National Union and its Permitted Transferees, if any (collectively the
"Put Seller") shall have the right, at their collective discretion, to cause TSC
or its Assignee (as hereafter defined) (a "Put Purchaser") to purchase (the "Put
Option") all (but not less than all) of the Put/Call Shares owned by the Put
Seller as of the date notice is given pursuant to Section 3.03; provided,
however, that during a Put Event Period triggered by a Put Event set forth in
subclauses (i), (ii), (iii), (iv) or (v) thereof, National Union may elect to
include within the term "Put/Call Shares" for purposes of this Article III any
other Shares purchased by National Union at Closing then owned by it (including
Shares issued on account of any subsequent Common Stock dividends, stock splits,
reverse stock splits or other similar transactions relating thereto).
SECTION 3.02 Put Period. The "Put Period" shall be the period commencing on
the third anniversary of the Closing and ending on the sixth anniversary of the
Closing. In addition, a "Put Event Period" shall also commence on the occurrence
of a Put Event and shall continue for ninety (90) days thereafter.
SECTION 3.03 Put Notice. The Put Seller shall exercise the Put Option by
delivery of written notice to the Put Purchaser during the Put Period or Put
Event Period, as the case may be. Upon receipt of a Put Notice in accordance
with the terms hereof, the Put Seller shall be obligated to sell all of the
Put/Call Shares then outstanding free and clear of all liens and encumbrances
created by it or its Affiliates (other than pursuant to this Agreement) and the
Put Purchaser shall be obligated to purchase all of such Put/Call Shares at the
applicable Put Price in accordance with, and subject to, the terms hereof;
provided, however, that the Put Option may not be exercised if the Put Seller
has breached the requirements of Article 2 hereof for so long as such breach is
continuing.
SECTION 3.04 Put Price. The "Put Price" shall be the product of the (a) the
number of Put/Call Shares outstanding subject to the Put Option, multiplied by
(b) the Target Investment Value per Share. At the Put Closing, the Put Seller
will distribute to the Put Purchaser the Distributable Property-in-Kind.
SECTION 3.05 Put Closing. The closing of the purchase and sale of Put/Call
Shares pursuant to the Put Option, shall take place at the principal office of
the Put Purchaser on a Business Day to be mutually agreed upon by the Put
Purchaser and Put Seller, which date shall be as soon as practicable after
receipt of the Put Notice (the "Put Closing"); provided, however, that if the
purchase of Put/Call Shares is subject to prior regulatory approval or requires
the
11
determination of Fair Market Value, the parties will use their reasonable best
efforts to obtain the necessary regulatory approvals or determination of Fair
Market Value and Put Closing shall be postponed until the expiration of five (5)
Business Days after the later of (i) all such regulatory approvals shall have
been received or (ii) the determination of Fair Market Value. At the Put
Closing, the Put Seller shall deliver to the Put Purchaser (A) the certificates
representing the Put/Call Shares duly endorsed or accompanied by stock powers
executed in blank, in form and substance satisfactory to the Put Purchaser,
together with all other documents required to be executed in connection with the
sale of the Put/Call Shares and evidence satisfactory to the Put Purchaser that
the Put/Call Shares are being transferred free and clear of all liens and
encumbrances created by the Put Seller or its Affiliates, and (B) all
Distributable Property-in-Kind (it being understood that in no event shall a Put
Seller be obligated to make any representations and warranties, or to provide
any indemnities, with respect to any matters other than title to the Put Shares
and Distributable Property-in-Kind held by such Person, such title being free
and clear of all liens and encumbrances created by it or its Affiliates, and
such Person's authority, authorization and right to enter into and consummate
the sale without contravention of any law or agreement, and without the need for
any third party consent or approval (not including any governmental or
regulatory consent or approval which shall have been received)). At the Put
Closing, the Put Purchaser shall pay the Put Price by delivery of cash by wire
transfer to the account of the Put Seller. At the Put Closing, the Put Seller
will transfer the Distributable Property-in-Kind to the Put Purchaser.
SECTION 3.06 Assignment of Put Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to an Affiliate, including RNT, the
Company or a Permitted Transferee (the "Assignee"), in which event all
references to TSC shall be deemed to refer to any Assignee and such Assignee
shall be deemed a party to this Agreement. Notwithstanding an assignment of the
Put Option by TSC or its Permitted Transferee, TSC shall remain liable under
this Article III. The rights and obligations of the Put Seller under this
Article III are not assignable without the consent of TSC.
SECTION 3.07 RNT Obligation Under Put Option. RNT shall be jointly and
severally liable for all obligations of TSC under this Article III.
SECTION 3.08 Put Postponement. Notwithstanding anything herein to the
contrary, the Put Seller may not exercise the Put Option if prohibited from
doing so under Article II or applicable law, provided the Put Purchaser and Put
Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 3.09 Exercise of Put Option Not a Transfer. Neither the exercise by
the Put Seller of the Put Option, nor the consummation of the transaction
contemplated thereby, shall constitute a Transfer that is subject to the right
of first refusal set forth in Article V or that is subject to the tag-along
rights set forth in Article VI.
12
ARTICLE IV
Call Rights
SECTION 4.01 Call Option. Subject to Section 2.04 (other than subsection
2.04(b)), TSC or its Assignee (in either case, the "Call Purchaser") has the
right, at its sole option, to cause National Union and its Permitted
Transferees, if any (collectively the "Call Seller") to sell (the "Call Option")
to TSC or its Assignee all (but not less than all) of the Put/Call Shares held
by the Call Seller as of the date notice is given pursuant to Section 4.03.
SECTION 4.02 Call Period. The "Call Period" shall be the period commencing
on the third anniversary of the Closing and ending on the sixth anniversary of
the Closing. In addition, a Call Period shall also commence on the occurrence of
a Call Event and shall continue for ninety (90) days thereafter. Notwithstanding
anything in this Agreement to the contrary, the Call Period (and the Call
Option) shall terminate upon (i) a change of Control of the Company; (ii) a
change of Control of TSC; (iii) one or more Transfers (other than a Transfer to
a Permitted Transferee) by TSC and its Permitted Transferees of shares of Common
Stock such that RNT fails to have sole direct or indirect Beneficial Ownership
of at least 10% of the outstanding Common Stock of the Company (for purposes
hereof, the voting securities of the Company Beneficially Owned, directly or
indirectly, by TSC shall be deemed solely Beneficially Owned indirectly by RNT),
(iv) RNT not being involved in the management of the Company or TSC, or (v)
breach of any provisions of the Definitive Agreements arising out of the sole
actions of RNT or TSC.
SECTION 4.03 Call Notice. A Call Purchaser shall exercise its Call Option
by delivery of written notice to the Call Seller during the Call Period. Upon
receipt of a Call Notice in accordance with the terms hereof, the Call Seller
shall be obligated to sell all of its or their Put/Call Shares free and clear of
all liens and encumbrances created by it or its Affiliates (other than pursuant
to this Agreement) and the Call Purchaser shall be obligated to purchase all of
its or their Put/Call Shares at the Call Price in accordance with, and subject
to, the terms hereof.
SECTION 4.04 Call Price. The "Call Price" for the Put/Call Shares shall be
the product of the (a) the number of Put/Call Shares outstanding and subject to
the Call Option, multiplied by (b) the Target Investment Value per Share. At the
Call Closing, the Call Seller with distribute to the Call Purchaser the
Distributable Property-in-Kind.
SECTION 4.05 Call Closing. The closing of the purchase and sale of Put/Call
Shares pursuant to the Call Option, shall take place at the principal office of
the Call Purchaser on a Business Day to be mutually agreed upon by the Call
Purchaser and the Call Seller, which date shall be as soon as practicable days
after receipt of the Call Notice (the "Call Closing"); provided, however, that
if the purchase of Put/Call Shares is subject to prior regulatory approval or
requires the determination of Fair Market Value, the parties will use their
reasonable best efforts to obtain the necessary regulatory approvals or
determination of Fair Market Value and the Call Closing shall be postponed until
the expiration of five (5) Business Days after the later of (i) all such
regulatory approvals shall have been received or (ii) the determination of Fair
Market Value. At the Call Closing, the Call Seller shall deliver to the Call
Purchaser (A) the certificates representing the Put/Call Shares duly endorsed or
accompanied by stock powers
13
executed in blank, in form and substance satisfactory to the Call Purchaser,
together with all other documents required to be executed in connection with the
sale of the Put/Call Shares and evidence satisfactory to the Call Purchaser that
the Put/Call Shares are being transferred free and clear of all liens and
encumbrances created by the Call Seller or its Affiliates, and (B) all
Distributable Property-on-Kind (it being understood that in no event shall a
Call Seller be obligated to make any representations and warranties, or to
provide any indemnities, with respect to any matters other than title to the
Put/Call Shares and Distributable Property-in-Kind held by such Person, such
title being free and clear of all liens and encumbrances created by it or its
Affiliates, and such Person's authority, authorization and right to enter into
and consummate the sale without contravention of any law or agreement, and
without the need for any third party consent or approval (not including any
governmental or regulatory consent or approval which shall have been received)).
At the Call Closing, the Call Purchaser shall pay the Call Price by delivery of
cash by wire transfer to the account of the Call Seller. At the Call Closing,
the Call Seller will transfer the Distributable Property-in-Kind to the Call
Purchaser.
SECTION 4.06 Assignment of Call Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to any Permitted Transferee and,
with the consent of National Union to such transfer of the Call Option in
writing (which consent shall be in the sole discretion of National Union and may
be granted or withheld for any reason or no reason), to any other Assignee.
SECTION 4.07 Call Postponement. Notwithstanding anything herein to the
contrary, the Call Purchaser may not exercise the Call Option if prohibited from
doing so under applicable law, provided the Call Purchaser and Call Seller, as
applicable, shall take all reasonable steps to comply with such applicable law.
SECTION 4.08 Exercise of Call Option Not a Transfer. Neither the exercise
by the Call Purchaser of the Call Option, nor the consummation of the
transaction contemplated thereby shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
ARTICLE V
Rights of First Refusal
SECTION 5.01 Right of First Refusal on Transfers.
(a) Only National Union, TSC and their respective Permitted Transferees
shall have any rights and obligations under this Article V (each a "Selling
Shareholder"). Subject to Sections 2.04, 5.04 and 5.05, if any Selling
Shareholder desires to Transfer all or any part of the ROFR Shares owned by it
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
the Selling Shareholder(s) shall submit a written offer (the "Offer") to sell
such shares (the "Offered Shares") on terms and conditions, including price, not
less favorable than those on which the Selling Shareholder(s) proposes to sell
such Offered Shares to the Proposed Transferee to TSC and its Permitted
Transferees (if the Selling Shareholder is National Union or its Permitted
Transferees) or to National Union and its
14
Permitted Transferees (if the Selling Shareholder is TSC, RNT or their Permitted
Transferees); in either case, the parties to whom the Selling Shareholder(s)
offer their shares are referred to in this Article V as the "Offerees".
(b) The rights of TSC or its Permitted Transferees, on the one hand, and
National Union and its Permitted Transferees, on the other hand, under this
Article V shall be in addition to and not in substitution of their respective
rights under the Put Option or Call Option, as the case may be, in their
discretion.
(c) So long as the Put Option and Call Option shall remain in effect, any
Put/Call Shares not otherwise Transferred as permitted under Section 2.03,
Article V or Article VI shall continue to be subject to Articles III and IV, as
the case may be.
(d) The Offer shall disclose the identity of the Proposed Transferee, the
number of Offered Shares proposed to be sold, the total number of ROFR Shares
owned by the Selling Shareholder(s), the terms and conditions (including price)
of the proposed sale, and any other material facts relating to the proposed
sale. The Offer shall further state that the Offerees may acquire, in accordance
with the provisions of this Agreement, the Offered Shares for the price and upon
the other terms and conditions, including deferred payment (if applicable), set
forth therein.
SECTION 5.02 Notice of Intent to Purchase. If an Offeree desires to
purchase the Offered Shares offered to it, it shall communicate in writing its
election to purchase to the Selling Shareholder(s) and each other Offeree within
fifteen (15) days of the date of the Offer (each party providing such notice, a
"Purchasing Shareholder") . A Purchasing Shareholder may also, but shall not be
required to, state that it is exercising an over-allotment right (the
"Over-Allotment Right") and the number of Shares it is willing to acquire
pursuant to such right; if any Offeree does not exercise its right of first
refusal pursuant to Section 5.01(a)(i), such Shares shall be allocated pro rata
among the Purchasing Shareholders exercising the Over-Allotment Right up to the
maximum amount stated in such Purchasing Shareholder's notices. Such
communication shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, binding and enforceable agreement for the sale and purchase
of the Offered Shares.
SECTION 5.03 Offered Shares Closing. The closing of the purchase and sale
of Offered Shares pursuant to the Offer, shall take place at the principal
office of the Selling Shareholder(s) on a Business Day to be mutually agreed to
by the Selling Shareholder(s) and the Purchasing Shareholder(s) (the "Offered
Shares Closing"), provided that if the purchase of Offered Shares is subject to
prior regulatory approval, the parties will use their reasonable best efforts to
obtain the necessary regulatory approvals and the Offered Shares Closing shall
be postponed until the expiration of five (5) Business Days after all such
regulatory approvals shall have been received. At the Offered Shares Closing,
the Selling Shareholder(s) shall deliver to the Purchasing Shareholder(s) the
certificates representing the Offered Shares duly endorsed or accompanied by
stock powers executed in blank, in form and substance satisfactory to the
Purchasing Shareholder(s), together with all other documents required to be
executed in connection with the sale of the Offered Shares and evidence
satisfactory to the Purchasing Shareholder(s) that the Offered Shares are being
transferred free and clear of all liens and encumbrances created by the Selling
Shareholder(s) or its Affiliates (it being understood that in
15
no event shall a Selling Shareholder be obligated to make any representations
and warranties, or to provide any indemnities, with respect to any matters other
than title to the Offered Shares held by such Person, such title being free and
clear of all liens and encumbrances created by it or its Affiliates, and such
Person's authority, authorization and right to enter into and consummate the
sale without contravention of any law or agreement, and without the need for any
third party consent or approval (not including any governmental or regulatory
consent or approval which shall have been received)). At the Offered Shares
Closing the Purchasing Shareholder(s) shall pay the purchase price for the
Offered Shares in such amount and on such payment terms as set forth in the
Offer.
SECTION 5.04 Sale to Third Party. If the Shareholders do not purchase all
of the Offered Shares, the Offered Shares not so purchased may be sold by the
Selling Shareholder(s) at any time within sixty (60) days after the date the
Offer was made. Any such sale shall be to the Proposed Transferee at not less
than the price and upon other terms and conditions not more favorable to the
Proposed Transferee than those specified in the Offer. If any Offered Shares are
not sold within the sixty (60)-day period or if the terms of the Offer shall
change, the Offered Shares shall be subject to renewed compliance with the
requirements of the right of first refusal pursuant to Section 5.01. Any third
party to whom Shares are sold shall become a Co-Investor and shall have no
rights or obligations under this Agreement except as provided in Sections
2.02(i), 2.03(b), 2.04 and 2.05 and Sections 7.02 and 7.03, provided, however,
that if (x) the Transfer to a Co-Investor is a Transfer by National Union or its
Permitted Transferee of Put/Call Shares and if the price to be paid equals or
exceeds the Target Investment Value per Share (using the Call Rate as the
discount rate) as of the date set for payment, then the Put/Call Shares so
Transferred shall continue to be subject to the Call Option and the purchasing
Co-Investor shall execute such documents as are reasonably requested by TSC or
its Assignee as to the existence and enforceability of the Call Option, and
(y) if the Transfer to a Co-Investor is a Transfer by National Union or its
Permitted Transferee of Put/Call Shares and if RNT consents to such Transfer and
the continuation of the Put Option and the Call Option in writing (which consent
shall be in the sole discretion of RNT and may be granted or withheld for any
reason or no reason), then the Put/Call Shares so Transferred shall continue to
be subject to the Put Option and the Call Option.
SECTION 5.05 Limitation as to National Union. The rights and obligations
set forth in this Article V shall not apply to any Shares purchased by National
Union other than the Put/Call Shares.
ARTICLE VI
Tag-Along Rights
SECTION 6.01 Tag-Along Option. Subject to Sections 2.04 and 6.03 of this
Agreement, if a Shareholder (a "Disposing Shareholder") (i) decides to sell
Shares and (ii) either (x) any one or more of the other Shareholders have not
exercised their right of first refusal as provided in Article V and purchased
the Offered Shares or (y) the Shares in question are not subject to Article V,
the Disposing Shareholder will cause the intended purchaser of such Disposing
Shareholder's Shares to afford to each party hereto that is a Shareholder for
purposes
16
of this Article VI (each, a "Non-Exercising Shareholder"), at its option, the
opportunity to sell (and will require the prospective purchaser to purchase) the
Shares held by such Non-Exercising Shareholders in the same proportion to the
aggregate number of Shares sought to be disposed of in such sale by the
Disposing Shareholder and Non-Exercising Shareholders and on the same terms and
conditions as those to be sold by the Disposing Shareholder, and for the same
consideration per share. The Disposing Shareholder's obligation to afford the
Non-Exercising Shareholders, or cause the Non-Exercising Shareholders to be
afforded, the opportunity and rights set forth in this Article VI, shall be
discharged if the Non-Exercising Shareholders are given written notice which
allows such Non-Exercising Shareholders thirty (30) days to elect to avail
themselves of such rights by written notice to the Disposing Shareholder. If any
Non-Exercising Shareholder elects to not participate or otherwise does not
affirmatively respond within such thirty (30) day period, the Disposing
Shareholders and such Non-Exercising Shareholders who have made an affirmative
election to sell their Shares may proceed with the sale, without regard to the
application of this Article VI to the non-electing Non-Exercising
Shareholder(s).
SECTION 6.02 Sale to Third Party. Any such sales shall be at not less than
the price and upon other terms and conditions not more favorable than those
specified in the Offer. If any such Shares are not sold within a sixty (60)-day
period from the date of the Offer, or if the terms of the Offer shall change,
the Shares shall again be subject to the requirements of the tag-along right
pursuant to Section 6.01. Any third party to whom Shares are sold shall become a
Co-Investor and shall have no rights or obligations hereunder except as provided
in Sections 2.02(i), 2.03(b), 2.04 and 2.05 and Sections 7.02 and 7.03,
provided, however, that if the sale to a third party is a sale by National Union
or its Permitted Transferee of Put/Call Shares and if the price per share to be
paid exceeds the Target Investment Value per Share (using the Call Rate as the
discount rate), then the Put/Call Shares so Transferred shall continue to be
subject to the Call Option and the purchasing Co-Investor shall execute such
documents as are reasonably requested by TSC or its Assignee as to the existence
and enforceability of the Call Option.
SECTION 6.03 Limitation as to National Union. The rights and obligations
set forth in this Article VI shall not apply to any Shares purchased by National
Union other than the Put/Call Shares.
ARTICLE VII
The Company's Board Of Directors; Publicity
SECTION 7.01 Nominees. (a) Each of the Shareholders (together with its
Permitted Transferees) shall have the right to designate one person to be
elected to the Board of Directors of the Company, which designee the Company
shall nominate for director in accordance with its Charter and By-Laws as
follows:
(i) National Union and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall appoint
such nominee to fill a vacancy on the Board of Directors at Closing.
Thereafter, the Board of
17
Directors of the Company shall nominate the person nominated, from time to
time, by National Union or its Permitted Transferee as a director of the
Company for reelection as a Class I director and such nominee shall be
submitted for election by shareholders as soon as members of such Class
stand for election, and each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a director
pursuant to this Section 7.01(a)(i) shall terminate at such time as
National Union and its Permitted Transferees collectively cease to hold at
least 25% of the Shares National Union acquired at Closing; and
(ii) O&G and its Permitted Transferees, if any, shall be entitled to
nominate one (1) person for election by the Board of Directors and the
Board of Directors of the Company shall appoint such nominee to fill a
vacancy on the Board of Directors at Closing. Thereafter, the Board of
Directors of the Company shall nominate the person nominated, from time to
time, by O&G or its Permitted Transferee as a director of the Company for
reelection as a Class III director and such nominee shall be submitted for
election by shareholders as soon as members of such Class stand for
election, and each time members of such Class stand for election thereafter
subject to the terms hereof; the right to designate a director pursuant to
this Section 7.01(a)(ii) shall terminate at such time as O&G and its
Permitted Transferees collectively cease to hold at least 25% of the Shares
O&G acquired at Closing;
(iii) TSC and its Permitted Transferees, if any, shall be entitled to
nominate one (1) person for election to the Board of Directors of the
Company; the parties hereto agree and acknowledge that RNT shall be deemed
the designee of TSC; RNT or such other person as may be designated by TSC
shall be submitted for election by shareholders as part of the management
slate each time members of such Class stand for election thereafter subject
to the terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(iii) shall terminate at such time as TSC and its Permitted
Transferees collectively cease to hold at least 25% of the Shares they
acquired at Closing; and
(iv) PB Capital and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and acknowledge
that Michael Klein ("Klein") shall be deemed the designee of PB Capital as
of the date of this Agreement; Klein or such other person as may be
designated by PB Capital shall be submitted for election by shareholders as
part of the management slate each time members of such Class stand for
election thereafter subject to the terms hereof; the right to designate a
director pursuant to this Section 7.01(a)(iv) shall terminate at such time
as PB Capital and its Permitted Transferees collectively cease to hold at
least 5% of the outstanding shares of Common Stock of the Company; and
(v) ULLICO and its Permitted Transferees, if any, shall collectively
be entitled to nominate one (1) person for election by the Board of
18
Directors and the Board of Directors of the Company shall appoint such
nominee to fill a vacancy on the Board of Directors at Closing. Thereafter,
the Board of Directors of the Company shall nominate the person nominated,
from time to time, by ULLICO and its Permitted Transferees as a director of
the Company for reelection as a Class II director and such nominee shall be
submitted for election by shareholders as soon as members of such Class
stand for election, and each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a director
pursuant to this Section 7.01(a)(v) shall terminate at such time as ULLICO
and its Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company.
(b) The Company shall use its best efforts to cause each nominee described
in clause (a) of this Section 7.01 to be nominated to the Board by the directors
of the Company as part of the management slate and to be submitted to the
shareholders of the Company for election at each annual or special meeting of
the shareholders convened for that purpose so long as each of them has the right
to nominate a director in accordance with this Section 7.01.
SECTION 7.02 Voting for Election of Directors. Each of the Shareholders,
their respective Permitted Transferees and Co-Investors agree to vote all shares
of capital stock of the Company then owned by it to elect to the Board of
Directors of the Company any person entitled to be nominated by any of the other
Shareholders (or their respective Permitted Transferees) pursuant to Section
7.01.
SECTION 7.03 Vacancy; Removal. Each Person who nominates a director of the
Company pursuant to Section 7.01 shall have the right to cause that person to
resign as a director of the Company. Any vacancy on the Board of Directors of
the Company created by the resignation, removal, incapacity or death of any
person nominated under this Article VII shall be filled by another person
nominated by the Person who nominated the director creating such vacancy or by
such Person's successors and assigns. The Shareholders agree to vote their
respective shares of Common Stock in accordance with such new designation, and
any such vacancy shall not be filed in the absence of a new nomination in
accordance with the foregoing sentence.
SECTION 7.04 Continuation as Director. Upon the occurrence of any event
that results in a Shareholder no longer being entitled to nominate a director
under Section 7.01, the Person so nominated shall continue as a director of the
Company until his successor is nominated, elected and qualifies.
SECTION 7.05 Publicity. To the extent that any of the Company or any
Shareholder intends to issue any press release or make any similar public
announcement or communication regarding the execution or performance of this
Agreement or the other Transaction Documents, the transactions contemplated
hereby and thereby, and the ongoing business relationship between the parties,
which release, announcement or disclosure mentions any of such parties, the
party making the disclosure shall consult with each of the parties so named in
such disclosure; provided, however, that no party shall be restrained, after
consultation
19
with the other parties, to the extent such consultation is feasible, from making
such disclosure as it shall be required to make by applicable law or by
applicable regulations of any regulatory body or securities exchange.
SECTION 7.06 Observer Rights for Shareholder Designee. The Company shall,
for so long as PB Capital and its Affiliates own or control at least 2.5% of the
outstanding shares of Common Stock, permit one (1) individual designated by PB
Capital and acceptable to the Company to attend and observe meetings of the
Board. The Company shall, for so long as ULLICO and its Affiliates own or
control at least 2.5% of the outstanding shares of Common Stock, permit one (1)
individual designated by ULLICO and acceptable to the Company to attend and
observe meetings of the Board. Each designee described in the preceding two
sentences shall have the right to receive timely notices of each meeting of the
Board of Directors and all written information provided by the Company to the
Board. Such designee shall have no right to vote on any matter presented to the
Board, but otherwise shall have all rights of a Director, including: (a) the
right to examine books and records of the Company; (b) the right to review and
participate in all discussions of the Board including, without limitation,
capital or equity programs; (c) the right to receive, upon request, any
information relating to the Company, and to any Affiliates thereof; and (d) the
right to meet on a regular basis with the management of the Company, or any
Affiliates thereof; provided that any such designee shall agree to be bound by
all policies relating to confidentiality and material non-public information
which are applicable to the directors and senior executive officers of the
Company.
SECTION 7.07 Subscription Rights.
(a) If the Board of Directors of the Company shall authorize the issuance
of New Securities, then, prior to each such issuance of New Securities, the
Company shall offer to each Shareholder and its Permitted Transferees a Pro Rata
Share of such New Securities.
(b) Any offer of New Securities made to any Shareholder or Permitted
Transferee under this Section 7.07 shall be made by notice in writing (the
"Subscription Notice") at least ten (10) Business Days prior to the date on
which the meeting of the Board is held to authorize the issuance of such New
Securities. The Subscription Notice shall set forth (i) the number of New
Securities proposed to be issued and the terms of such New Securities, (ii) the
consideration (or manner of determining the consideration), if any, for which
such New Securities are proposed to be issued and the terms of payment, (iii)
the number of New Securities offered to each Shareholder and Permitted
Transferee in compliance with the provisions of this Section 7.07 and (iv) the
proposed date of issuance of such New Securities. Not later than twenty (20)
Business Days after its receipt of a Subscription Notice, each Shareholder and
Permitted Transferee shall notify the Company in writing whether it elects to
purchase all or any portion of the New Securities offered to it pursuant to the
Subscription Notice. If a Shareholder or Permitted Transferee shall elect to
purchase any such New Securities, the New Securities which it shall have elected
to purchase shall be issued and sold to such person by the Company at the same
time and on the same terms and conditions as the New Securities are issued and
sold to third parties. If, for any reason, the issuance of New Securities to
third parties is not consummated, the right of the Shareholders and Permitted
Transferees to their respective Pro
20
Rata Shares of such issuance shall lapse, subject to their ongoing subscription
right with respect to issuances of New Securities at later dates or times.
(c) The Company represents and covenants to each Shareholder and Permitted
Transferee that (i) upon issuance, all the shares of New Securities sold to such
Person pursuant to this Section 7.07 shall be duly authorized, validly issued,
fully paid and nonassessable and will be approved (if outstanding securities of
the Company of the same type are at the time already approved) for listing on
the American Stock Exchange or for quotation or listing on the principal trading
market for the securities of the Company at the time of issuance, (ii) upon
delivery of such shares, they shall be free and clear of all claims, Liens,
encumbrances, security interests and charges of any nature and shall not be
subject to any preemptive right of any stockholder of the Company and (iii) in
connection with any such issuance, the Company shall take such actions as are
specified in Section 3.01(q) of the Securities Purchase Agreement with respect
to such shares.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Injunctive Relief. The parties hereto acknowledge and agree
that it will be impossible to measure the damages that would be suffered if any
party fails to comply with the provisions of this Agreement that it is required
to comply with and, in the event of any such failure, the non-breaching parties
will have the right to obtain specific performance of the breaching party's
obligations under this Agreement and to obtain immediate injunctive relief.
These rights shall be in addition to, and not in substitution of, any other
rights that any non-breaching party may have in law or in equity.
SECTION 8.02 Entire Agreement. Each party expressly acknowledges and agrees
that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Registration Rights Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section13 (d) of the Exchange Act),
or otherwise act together, with respect to the Company or its securities.
SECTION 8.03 Binding Effect; Benefit. This Agreement shall inure to the
benefit and be binding upon the parties hereto and their Permitted Transferees,
Co-Investors and Assignees to the extent set forth in this Agreement; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto and their
Permitted Transferees, Co-Investors and Assignees; and, in the case of a natural
person, upon his successors, assigns, heirs, legatees, distributees, estates,
executors, administrators, personal representatives and other legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this
21
Agreement. Nothing in this Agreement, expressed or implied, shall confer on any
party or Permitted Transferee, Co-Investor and Assignee; and, in the case of a
natural person, upon his successors, assigns, heirs, legatees, distributees,
estates, executors, administrators, personal representatives and other legal
representatives, any greater rights, remedies, obligations or liabilities than
as set forth in this Agreement.
SECTION 8.04 Assignability. Except as set forth in this Agreement, neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by any party hereto or their Permitted
Transferees or Assignees.
SECTION 8.05 Amendment; Waiver; Termination. No provision of this Agreement
may be waived except by an instrument in writing signed by the party against
whom the waiver is to be effective. No provision of this Agreement may be
amended or modified except by an instrument in writing signed by all of the
parties who would have any rights or obligations under the relevant provision
the Agreement. This Agreement shall terminate on the earlier of (i) the date
that National Union or its Permitted Transferee shall no longer Beneficially Own
any Put/Call Shares, or (ii) the sixth anniversary of the Closing.
SECTION 8.06 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
73 Mt. Wayte Avenue
Framingham, Massachusetts 01701
Attn: ........Robert Band, President
Facsimile: .....(508) 628-2960
with a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 01209
Attn: ........Richard A. Soden, Esq.
Facsimile: .....(617) 523-1231
TSC and RNT:
Tutor-Saliba Corp.
15901 Olden Street
Sylmar, CA 91342-1093
Attn: ........Ronald S. Tutor
Facsimile: .....(818) 367-9574
22
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attn: ........Eric R. Markus
Facsimile: .....(202) 663-6363
National Union:
c/o AIG Global Investment Corp.
175 Water Street
26th Floor
New York, New York 10038
Attn: ........Christopher H. Lee
........Chris Saxman
Facsimile:.......(212) 458-2250
with a copy to:
American International Group, Inc.
Law Department
70 Pine Street
28th Floor
New York, New York 10270
Attn: ........John P. Hornbostel
Facsimile:.......(212) 363-8596
O&G:
O&G Industries, Inc.
112 Wall Street
Torrington, Connecticut 06790
Attn: ........Raymond Oneglia
........Kenneth Merz
Facsimile:.......(860) 626-6498
with a copy to:
Murtha, Cullina, Richter & Pinney
185 Asylum Street
City Place I
Hartford, Connecticut 06103-3469
Attn: Timothy Largay
Facsimile:.......(860) 240-6150
23
BLUM:
BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: ........Murray Indick
Facsimile:.......(415) 434-3130
PB Capital:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: ........Murray Indick
Facsimile:.......(415) 434-3130
The Common Fund:
c/o BLUM Capital Partners, L.P.
909 Montgomery Street, Suite 400
San Francisco, California 94133
Attn: ........Murray Indick
Facsimile:.......(415) 434-3130
ULLICO:
The Union Labor Life Insurance Company
111 Massachusetts Avenue, N.W.
Washington, D.C. 2001
Attn: ........Robert Kennedy
Facsimile:.......(202) 682-4690
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
555 South Flower Street, 23rd Floor
Los Angeles, California 90071
Attn: ........Alan J. Barton
Facsimile:.......(213) 627-0705
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 8.07 Fees and Expenses. Each party shall pay its own fees and
expenses (including fees, expenses and disbursements of counsel) in connection
with this Agreement and the performance of each parties rights, remedies and
obligations hereunder.
24
SECTION 8.08 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 8.09 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
SECTION 8.10 Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by and construed and enforced in accordance with the internal laws
of the State of New York. Each of the parties hereto 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 parties 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 8.06 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 parties hereto 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 8.11 Limitations on Damages. Each party hereto acknowledges that,
except as provided in this Agreement, no party is entitled to seek or recover
consequential, punitive or exemplary damages in respect of this Agreement under
any circumstances or for any reason. Consequential damages are, without
limitation, lost profits, lost revenue and the like but do not include the
actual costs incurred in obtaining substitute performance where there has been a
failure to perform an obligation under any provision of this Agreement.
SECTION 8.12 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.
SECTION 8.13 Amendments to Laws. Any reference to a section, form, rule or
regulation of the Securities Act, the Exchange Act or the Code, includes any
successor section, form, rule, regulation or law.
SECTION 8.14 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective Permitted Transferees, Co-Investors, successors and
permitted Assigns, any benefit, right or remedies under or by reason of this
Agreement.
25
SECTION 8.15 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 8.16 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 any other party as to such
tax consequences.
[remainder of page intentionally left blank]
26
IN WITNESS WHEREOF, each party hereto have caused this Agreement to be duly
executed by himself or its authorized officer as of the day and year first above
written.
PERINI CORPORATION
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:/s/Robert Band
Name: Robert Band
Title: President
TUTOR-SALIBA CORPORATION
By:/s/Ronald N. Tutor
Name: Ronald N. Tutor
Title: President and Chief Executive Officer
/s/Ronald N. Tutor
Ronald N. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.
By:/s/David B. Pinkerton
Name: David B. Pinkerton
Title: Vice President
O&G INDUSTRIES, INC.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:/s/Raymond R. Onelgia
Name: Raymond R. Oneglia
Title: Vice Chairman
27
BLUM CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Muray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P.,
its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Murray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: BLUM Capital Partners, L.P., its investment
advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Murray A. Indick
Name: Murray A. Indick
Title: Partner, General Counsel and
Secretary
28
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:/s/Joseph Linehan
Name: Joseph Linehan
Title: VP, Securities
29
Exhibit 4.3
PERINI CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
as Rights Agent
____________________
Amendment to
Shareholder Rights Agreement
Dated as of September 23, 1988
as amended and restated
as of May 17, 1990
as further amended and restated
as of January 17, 1997
and amended hereby as of March 29, 2000
THIS AMENDMENT to Shareholder Rights Agreement, dated as of September 23,
1988, as amended and restated as of May 17, 1990, as further amended and
restated as of January 17, 1997, and amended hereby as of March 29, 2000 between
Perini Corporation, a Massachusetts corporation (the "Company"), and State
Street Bank and Trust Company (the "Rights Agent"). Capitalized terms used
herein and not defined herein shall have the meanings given them in the Rights
Agreement.
W I T N E S S E T H
WHEREAS, as a condition to the consummation of the transactions
contemplated by the Securities Purchase Agreement dated February 5, 2000 by and
among the Company, Tutor-Saliba Corporation ("Tutor-Saliba"), a California
corporation, O & G Industries Inc. ("O&G"), a Connecticut corporation, and the
National Union Fire Insurance Company of Pittsburgh, PA ("National"), a
[Pennsylvania corporation],Tutor-Saliba, O&G and National have required that the
Company amend the Shareholder Rights Agreement dated as of September 23, 1988,
as amended and restated as of May 17, 1990, as amended as of July 24, 1996,
November 4, 1996 and December 13, 1996, and amended and restated as of January
17, 1997 (the Rights Agreement), to exempt the proposed investment by
Tutor-Saliba, O&G and National from the provisions of the Rights Agreement; and
WHEREAS, in accordance with the terms of the Rights Agreement, the Company
deems it advisable and in the best interests of its shareholders to make certain
further amendments to the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree that the Rights Agreement is hereby
amended as follows:
1. That the words ", a Massachusetts trust company" be inserted after the
words "State Street Bank and Trust Company" in the preamble of the Rights
Agreement.
2. That the last sentence in the definition of "Acquiring Person" in Section
1(a) of the Rights Agreement be deleted and replaced with the following two
sentences:
"Notwithstanding anything in this Agreement to the contrary, solely for the
purpose of determining whether PB Capital Partners, The Union Labor Life
Insurance Company ("ULLICO"), The Common Fund for Non-Profit Organizations
("The Common Fund"), RCBA, Ronald N. Tutor ("Tutor"), Tutor-Saliba or any
of their respective Affiliates or Associates is an Acquiring Person, none
of such persons shall be deemed to beneficially own (i) any shares of
Series B Cumulative Convertible Preferred Stock (the "Series B Preferred
Stock") of the Company issued or issuable pursuant to the Stock Purchase
and Sale Agreement, including shares issued or issuable as payment-in-kind
dividends, (ii) any shares of the Common Stock issued or issuable upon the
conversion or exchange of such shares of Series B Preferred Stock, (iii)
any shares of Common Stock issued or issuable pursuant to the Participation
Agreement by and between the Company and PB
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Capital Partners dated as of November 4, 1996, or (iv) any shares of Common
Stock issued or issuable to Tutor upon exercise of a certain stock option
granted to Tutor on January 17, 1997. Notwithstanding anything in this
Agreement to the contrary, solely for the purpose of determining whether
Tutor-Saliba, O&G, National or any of their respective Affiliates or
Associates is an Acquiring Person, none of such persons shall be deemed to
beneficially own (i) any shares of Common Stock of the Company issued or
issuable pursuant to the Securities Purchase Agreement or (ii) any shares
of Common Stock issued or issuable to Tutor upon exercise of a certain
stock option granted to Tutor on March 29, 2000."
3. That the last sentence in the definition of "Adverse Person" in Section
1(b) of the Rights Agreement be deleted and replaced with the following
sentence:
"Notwithstanding anything in this Agreement to the contrary, the Board of
Directors may not declare any of the following entities an Adverse Person:
PB Capital Partners, ULLICO, The Common Fund, RCBA, Tutor, Tutor-Saliba,
O&G, National and their respective Affiliates."
4. That the last sentence in the definition of "Stock Acquisition Date" in
Section 1(s) of the Rights Agreement be deleted and replaced with the
following two sentences:
"Notwithstanding anything in this Agreement to the contrary, solely for the
purpose of determining whether a Stock Acquisition Date has occurred, PB
Capital Partners, ULLICO, The Common Fund, RCBA, Tutor, Tutor-Saliba and
their respective Affiliates and Associates, shall be deemed not to
beneficially own (i) any shares of Series B Preferred Stock of the Company
issued or issuable pursuant to the Stock Purchase and Sale Agreement,
including shares issued as payment-in-kind dividends, (ii) any shares of
the Common Stock issued or issuable upon the conversion or exchange of such
shares of Series B Preferred Stock, (iii) any shares of Common Stock issued
or issuable pursuant to the Participation Agreement by and between the
Company and PB Capital Partners dated as of November 4, 1996, or (iv) any
shares of Common Stock issued or issuable to Tutor upon exercise of a
certain stock option granted to Tutor on January 17, 1997. Notwithstanding
anything in this Agreement to the contrary, solely for the purpose of
determining whether a Stock Acquisition Date has occurred, none of
Tutor-Saliba, O&G, National or any of their respective Affiliates or
Associates shall be deemed to beneficially own (i) any shares of Common
Stock of the Company issued or issuable pursuant to the Securities Purchase
Agreement or (ii) any shares of Common Stock issued or issuable to Tutor
upon exercise of a certain stock option granted to Tutor on March 29,
2000."
5. That the following language be inserted at the end of the second sentence
of Section 2 of the Rights Agreement: ", upon ten (10) days prior written
notice to the Rights Agent. The Rights Agent shall have no duty to
supervise, and shall in no event be liable for, the acts or omissions or
any such co-Rights Agent."
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6. That the word "gross" be inserted prior to the word "negligence" in the
second sentence of Section 18(a) and in Section 20(c) of the Rights
Agreement.
7. That the address for notices to the Rights Agent in Section 26 of the
Rights Agreement be changed to
"State Street Bank and Trust Company
c/o EquiServe Limited Partnership
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration"
8. That the remaining provisions of the Rights Agreement remain in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
PERINI CORPORATION
By:/s/Robert Band
Name: Robert Band
Title: President
STATE STREET BANK AND TRUST
COMPANY, as Rights Agent
By:/s/Charles Rossi
Name: Charles Rossi
Title: Vice President
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Exhibit 4.4
TERMINATION/AMENDMENT AGREEMENT
This Termination/Amendment Agreement (the "Agreement") is entered into this
29th day of March 2000, by and among PB Capital Partners, L.P., a Delaware
limited partnership ("PB"), The Common Fund for Non-Profit Organizations, a New
York non-profit organization ("The Common Fund"), BLUM Capital Partners, L.P.
(f/k/a Richard C. Blum & Associates, L.P.), a California limited partnership
("Blum"), The Union Labor Life Insurance Company, a Maryland corporation, acting
for its Separate Account P ("Union Labor Life") and Perini Corporation, a
Massachusetts corporation (the "Company").
WHEREAS, Blum, PB and the Company are parties to that certain Stock
Purchase and Sale Agreement dated July 24, 1996, together with all exhibits and
schedules thereto and all amendments and modifications thereof (collectively
referred to as the "Stock Purchase Agreement"), pursuant to which PB agreed to
purchase 150,150 shares of newly issued Series B Cumulative Convertible
Preferred Stock, par value $1.00 per share (the "Series B Preferred Stock"), of
Seller for $30,030,000; and
WHEREAS, PB, the Company and Union Labor Life are parties to that certain
Stock Assignment and Assumption Agreement dated as of December 13, 1996 pursuant
to which Union Labor Life acquired the rights and obligations to purchase 34,500
shares of Series B Preferred Stock under the Stock Purchase Agreement; and
WHEREAS, PB, the Company and The Common Fund are parties to that certain
Assignment and Assumption Agreement dated as of January 17, 1997 pursuant to
which The Common Fund acquired the rights and obligations to purchase 23,300
shares of Series B Preferred Stock under the Stock Purchase Agreement; and
WHEREAS, the Company has entered into that certain Securities Purchase
Agreement (the "SPA") dated as of February 5, 2000 by and among Tutor-Saliba
Corporation, a California corporation, O&G Industries, Inc., a Connecticut
corporation, and the National Union Fire Insurance Company of Pittsburgh, Pa., a
Pennsylvania corporation (collectively, the "Purchasers"), pursuant to which the
Purchasers have agreed to purchase an aggregate of 9,411,765 shares of newly
issued common stock of the Company ("Common Stock"); and
WHEREAS, in connection with the SPA, the Company and each of Union Labor
Life, The Common Fund and PB have entered into separate Exchange Agreements (the
"Exchange Agreements") pursuant to which each of Union Labor Life, The Common
Fund and PB have agreed to exchange their shares of Series B Preferred Stock for
shares of Common Stock of the Company, to amend certain provisions of the Stock
Purchase Agreement and to terminate the Registration Rights Agreement (the
"Registration Rights Agreement") which was entered into in connection with the
transactions contemplated by the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each of the parties agrees as follows:
1. Upon consummation of the transactions contemplated by the Exchange
Agreements and the SPA, the parties hereto agree that the Registration
Rights Agreement shall terminate and have no further effect without any
further action by any of the parties hereto.
2. Upon consummation of the transactions contemplated by the Exchange
Agreements and the SPA, the parties hereto agree that the Stock Purchase
Agreement shall be amended as follows without any further action by the
parties hereto:
a. Section 7.2 of the Stock Purchase Agreement shall be deleted in its
entirety;
b. Section 7.3 of the Stock Purchase Agreement shall be deleted in its
entirety; and
c. Section 7.20 of the Stock Purchase Agreement shall be deleted in its
entirety.
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IN WITNESS WHEREOF, each party hereto have caused this Agreement to be duly
executed by himself or its authorized officer as of the day and year first above
written.
PERINI CORPORATION
By:/s/Robert Band
Name: Robert Band
Title: President
BLUM CAPITAL PARTNERS, L.P.
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Murray Indick
Name: Murray Indick
Title: Partner, General Counsel and Secretary
PB CAPITAL PARTNERS, L.P.
By: BLUM Capital Partners, L.P., its general partner
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Murray Indick
Name: Murray Indick
Title: Partner, General Counsel and Secretary
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THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
By:BLUM Capital Partners, L.P., its investment advisor
By: Richard C. Blum & Associates, Inc.,
its general partner
By:/s/Murray Indick
Name: Murray Indick
Title: Partner, General Counsel and Secretary
THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
By:/s/Joseph Linehan
Name: Joseph Linehan
Title: Vice President, Securities
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