The Commonwealth of Massachusetts
Michael Joseph Connolly
Secretary of State
One Ashburton Place, Boston, Mass. 02108
Federal Identification No. 04-1717070
RESTATED ARTICLES OF ORGANIZATION
General Laws, Chapter 156B, Section 74
This certificate must be submitted to the Secretary of the Commonwealth
within sixty days after the date of the vote of stockholders adopting the
restated articles of organization. The fee for filing this certificate is
prescribed by General Laws, Chapter 156B, Section 114.
Make check payable to the Commonwealth of Massachusetts.
We, David B. Perini, President and Patricia A. Kelly, Clerk of Perini
Corporation located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701 do
hereby certify that the following restatement of the articles of organization of
the corporation was duly adopted at a meeting held on December 9, 1987, by vote
of the Board of Directors.
1. The name by which the corporation shall be known is:
See Article 1 of Exhibit A
2. The purposes for which the corporation is formed are as follows:
See Article 2 of Exhibit A
3. The total number of shares and the par value, if any, of each class of
stock which the corporation is authorized to issue is as follows:
See Article 3 of Exhibit A
WITHOUT PAR VALUE WITH PAR VALUE
CLASS OF STOCK NUMBER OF SHARES NUMBER OF SHARES PAR VALUE
Preferred 1,000,000 $1.00
Common 7,500,000 $1.00
1
4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as to
each class thereof and any series now established.
See Article 4 of Exhibit A
5. The restrictions, if any, imposed by the articles of organization upon
the transfer of shares of stock of any class are as follows:
See Article 5 of Exhibit A
6. Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution,
or for limiting, defining, or regulating the powers of the corporation,
or of its directors or stockholders, or of any class of stockholders:
See Article 6 of Exhibit A
EXHIBIT A
PERINI CORPORATION
RESTATED ARTICLES OF ORGANIZATION
1. The name by which the corporation shall be known is:
PERINI CORPORATION
2. The purposes for which the corporation is formed are as follows:
To carry on a general contracting and construction business;
to carry on a general mining business; to carry on a general business with
respect to oil, gas and other natural resources; to carry on a general real
estate development and operations business; to carry on a general business of
promoting, conducting or producing any one or more lawful athletic or amusement
activities and exhibitions; to carry on a general business of manufacturing or
otherwise producing, acquiring, preparing for market, buying and selling,
dealing in and with and disposing of any and all kinds of construction, sporting
and amusement equipment, materials and supplies and any and all products and
by-products thereof, any and all ingredients, supplies and items in any stage of
production, used or useful in combination with, in substitution for or otherwise
in connection with or of which any one or more such products, by-products,
ingredients, supplies or items form or are suitable to form, a component part
and all related machinery, appliances, apparatus and tools; to acquire, hold,
use and dispose of property of whatever kind and wherever situated, and rights
and interests therein, including going enterprises and the acquisition of
interests in and obligations of other
2
concerns (wherever and however organized) or of individuals, and while the owner
thereof to exercise all the rights, powers and privileges of ownership in the
same manner and to the same extent that an individual might; to discover, invent
or acquire rights and interests in inventions, designs, patents, patent rights
and licenses, trademarks, trade names, copyrights and trade secrets in any
field, whether or not cognate to any other activity of the corporation and to
hold, use, sell, license the use of or otherwise utilize, deal in or dispose of
the same; to lend money, credit or security to, to guarantee or assume
obligations of and to aid in any other manner other concerns (wherever and
however organized) or individuals, any obligation of which or any interest in
which is held by this corporation or in the affairs or prosperity of which this
corporation has a lawful interest, and to do all acts and things designed to
protect, improve or enhance the value of any such obligation or interest; to
join with others in any enterprise conducive to the success of the corporation,
in such manner and on such terms and conditions as may be agreed upon; and in
general, whether as principal or as agent or contractor for others and in any
manner, to do every act and thing and to carry on any and all businesses and
activities in any way connected with any of the foregoing which may lawfully be
done or carried on by business corporations wherever such one or more businesses
or activities may be so done and to exercise all the powers conferred by the
laws of The Commonwealth of Massachusetts upon business corporations, provided,
however, that the corporation is not organized for any purpose which prevents
the provisions of Chapter 156 B of the General Laws of said Commonwealth and
acts in amendment thereof and in addition thereto, from being applicable to it.
3. The total number of shares and the par value, if any, of each class of
stock which the corporation is authorized to issue is as follows:
Without Par Value With Par Value
Number of Number of
Class of Stock Shares Shares Par Value
Common None 7,500,000 $1.00
Preferred None 1,000,000 1.00
Series of Preferred Stock
$21.25 Convertible
Exchangeable
Preferred Stock None 100,000 1.00
Two classes of stock are authorized, Common Stock having a par value of
$1.00 per share and Preferred Stock having a par value of $1.00 per share. Stock
of any class or series authorized pursuant hereto may be issued from time to
time by authority of the Board of Directors for such consideration as from time
to time may be fixed by vote of the Board of Directors.
3
I. The Preferred Stock may consist of one or more series. The Board of
Directors may, from time to time, establish and designate the different series
and the variations in the relative rights and preferences as between the
different series as provided in Section II hereof, but in all other respects all
shares of the Preferred Stock shall be identical. In the event that at any time
the Board of Directors shall have established and designated one or more series
of Preferred Stock consisting of a number of shares less than all of the
authorized number of shares of Preferred Stock, the remaining authorized shares
of Preferred Stock shall be deemed to be shares of an undesignated series of
Preferred Stock until designated by the Board of Directors as being a part of a
series previously established or a new series then being established by the
Board of Directors.
II. Subject to the provisions of this Description of Classes of Stock,
the Board of Directors is authorized to establish one or more series of
Preferred Stock and, to the extent now or hereafter permitted by the laws of the
Commonwealth of Massachusetts, to fix and determine the preferences, voting
powers, qualifications and special or relative rights or privileges of each
series including, but not limited to:
(a) the number of shares to constitute such series and the distinctive
designation thereof;
(b) the dividend rate on the shares of such series and the preferences, if
any, and the special and relative rights of such shares of such series
as to dividend;
(c) whether or not the shares of such series shall be redeemable, and, if
redeemable, the price, terms and manner of redemption;
(d) the preferences, if any, and the special and relative rights of the
shares of such series upon liquidation of the corporation;
(e) whether or not the shares of such series shall be subject to the
operation of a sinking or purchase fund and, if so, the terms and
provisions of such fund;
(f) whether or not the shares of such series shall be convertible into
shares of any other class or of any other series of the same or any
other class of stock of the corporation and, if so, the conversion
price or ratio and other conversion rights;
(g) the conditions under which the shares of such series shall have
separate voting rights or no voting rights; and
(h) such other designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or
restrictions of such series to the full extent now and hereafter
permitted by the laws of the Commonwealth of Massachusetts.
4
Notwithstanding the fixing of the number of shares constituting a
particular series, the Board of Directors may at any time authorize the
issuance of additional shares of the same series.
III. Holders of Preferred Stock shall be entitled to receive, when and
as delivered by the Board of Directors, but only out of funds legally available
for the payment of dividends, cash dividends at the rates fixed by the Board of
Directors for the respective series, payable on such dates in each year as the
Board of Directors shall fix for the respective series as provided in Section II
(hereinafter referred to as "dividend dates"). Until all accrued dividends on
each series of Preferred Stock shall have been paid through the last preceding
dividend date on each such series, no dividend or distribution shall be made to
holders of Common Stock other than a dividend payable in Common Stock of the
corporation. Dividends on shares of any cumulative series of Preferred Stock
shall accumulate from and after the day on which such shares are issued, but
arrearage in the payment thereof shall not bear interest. Nothing herein
contained shall be deemed to limit the right of the corporation to purchase or
otherwise acquire at any time any shares of its capital stock.
For purposes of this Description of Class of Stock, the amount of
dividends "accrued" on any shares of any cumulative series of Preferred Stock as
at any dividend date shall be deemed to be the amount of any unpaid dividends
accumulated thereon to and including such dividend date, whether or not earned
or declared. The amount of dividends "accrued" on any noncumulative series of
Preferred Stock shall mean only those dividends declared by the Board of
Directors, unless otherwise specified for such series by the Board of Directors
pursuant to Section II.
IV. Upon the voluntary or involuntary liquidation of the corporation,
before any payment or distribution of the assets of the corporation shall be
made to or set apart for any other class of stock, the holders of Preferred
Stock shall be entitled to payment of the amount of the preference payable upon
such liquidation of the corporation fixed by the Board of Directors for the
respective series as provided in Section II. If, upon any such liquidation, the
assets of the corporation shall be insufficient to pay in full to the holders of
the Preferred Stock the preferential amount aforesaid, then such assets, or the
proceeds thereof, shall be distributed among the holders of each series of
Preferred Stock ratably in accordance with the sums which would be payable on
such distribution if all sums payable were discharged in full. The voluntary
sale, conveyance, exchange or transfer of all or substantially all of the
property and assets of the corporation, the merger or consolidation of the
corporation into or with any other corporation, or the merger of any other
corporation into it, shall not be deemed to be a liquidation of the corporation
for the purpose of this Section IV.
V. Any shares of Preferred Stock which shall at any time have been
redeemed or which shall at any time have been surrendered for conversion or
exchange or for cancellation, pursuant to any sinking or purchase fund
provisions with respect to any series of Preferred Stock, shall be retired and
shall thereafter have the status of authorized and unissued shares of Preferred
Stock undesignated as to series.
5
VI. The Common Stock shall have exclusive voting power except as
required by law and except to the extent the Board of Directors shall, at the
time any series of Preferred Stock is established, determine that the shares of
such series shall vote (i) together as a single class with shares of Common
Stock and/or with shares of Preferred Stock (or one or more other series
thereof) on all or certain matters presented to the stockholders and/or upon the
occurrence of any specified event or condition, and/or (ii) exclusively on
certain matters or, upon the occurrence of any specified even or condition, on
all or certain matters. The Board of Directors, in establishing a series of
Preferred Stock and fixing the voting rights thereof, may determine that the
voting power of each share of such series may be greater or less than the voting
power of each share of the Common Stock or of other series of Preferred Stock
notwithstanding that the shares of such series of Preferred Stock may vote as a
single class with the shares of other series of Preferred Stock and/or with the
shares of Common Stock.
4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as to
each class thereof and any series now established:
See Article 3 above.
5. The restrictions, if any, imposed by the articles of organization upon
the transfer of shares of stock of any class are as follows:
None.
6. Other lawful provisions for the conduct and regulation of the business
and affairs of the corporation, for its voluntary dissolution, or for
limiting, defining, or regulating the powers of the corporation, or of
its directors or stockholders, or of any class of stockholders are as
follows:
6.1 The directors may make, amend or repeal the by-laws in whole or in
part, except with respect to any provision thereof which by law or the
by-laws requires action by the stockholders.
6.2 Meetings of the stockholders may be held anywhere in the United States.
6.3 Except as specifically authorized by statute, no stockholder shall have
any right to examine any property or any books, accounts or other
writings of the corporation if there is reasonable ground for belief
that such examination will for any reason be adverse to the interests
of the corporation, and a vote of the board of directors refusing
permission to make such examination and setting forth that in the
opinion of the board of directors such examination would be adverse to
the interests of the corporation shall be prima facie evidence that
such examination would be adverse to the interests of the corporation.
Every such examination shall be subject to such reasonable regulations
as the board of directors may establish in regard thereto.
6
6.4 The board of directors may specify the manner in which the accounts of
the corporation shall be kept and may determine what constitutes net
earnings, profits and surplus, what amounts, if any, shall be reserved
for any corporate purpose, and what amounts, if any, shall be declared
as dividends. Unless the board of directors otherwise specifies, the
excess of the consideration of any share of its capital stock with par
value issued by it over such par value shall be paid in surplus. All
surplus shall be available for any corporate purpose, including the
payment of dividends.
6.5 The corporation may purchase or otherwise acquire, hold, sell or
otherwise dispose of shares of its own capital stock, and such purchase
or holding shall not be deemed a reduction of its capital stock. The
corporation may reduce its capital stock in any manner authorized by
law. Such reduction may be effected by the cancellation and retirement
of any shares of capital stock held by it. Upon any reduction of
capital or capital stock, no stockholder shall have any right to demand
any distribution from the corporation, except as and to the extent that
the stockholders shall so have provided at the time of authorizing such
reduction.
6.6 Each director and officer of the corporation shall, in the performance
of his duties, be fully protected in relying in good faith upon the
books of account of the corporation, reports made to the corporation by
any of its officers or employees or by counsel, accountants, appraisers
or other experts or consultants selected with reasonable care by the
directors, or upon other records of the corporation.
6.7 The directors shall have the power to fix from time to time their
compensation.
6.8 The corporation may enter into contracts and otherwise transact
business as vendor, purchaser or otherwise with its directors, officers
and stockholders and with corporations, joint stock companies, trusts,
firms and associations in which they are or may be or become interested
as directors, officers, shareholders, members, trustees, beneficiaries
or otherwise as freely as though such adverse interest did not exist
even though the vote, action or presence of such director, officer or
stockholder may be necessary to obligate the corporation upon such
contract or transaction; and no such contract or transaction shall be
avoided and no such director, officer or stockholder shall be held
liable to account to the corporation or to any creditor or stockholder
of the corporation for any profit or benefit realized by him through
any such contract or transaction by reason of such adverse interest nor
by reason of any fiduciary relationship of such director, officer or
stockholder to the corporation arising out of such office or stock
ownership; provided (in the case of directors and officers but not in
the case of any stockholder who is not a director or officer of the
corporation) the nature of the interest of such director or officer,
though not necessarily the details or extent thereof, be known by or
disclosed to the directors. Ownership of beneficial interest in a
minority of the stock or securities of another corporation, joint stock
company, trust, firm or association shall not be deemed to constitute
an interest adverse to this corporation in such other corporation,
joint stock company, trust, firm or association and need
7
not be disclosed. A general notice that a director or officer of the
corporation is interested in any corporation, joint stock company,
trust, firm or association shall be a sufficient disclosure as to such
director or officer with respect to all contracts and transactions with
that corporation, joint stock company, trust, firm, or association. In
any event the authorizing or ratifying vote of a majority of the
capital stock of the corporation outstanding and entitled to vote
passed at a meeting duly called and held for the purposes shall
validate any such contract or transaction as against all stockholders
of the corporation, whether of record or not at the time of such vote,
and as against all creditors and other claimants, under the
corporation, and no contract or transaction shall be avoided by reason
of any provision of this paragraph which would be valid but for these
provisions.
6.9 The terms and conditions upon which a sale or exchange of all the
property and assets, including the good will of the corporation, or any
part thereof, is voted may include the payment therefor in whole or in
part in shares, notes, bonds or other certificates of interest or
indebtedness of any voluntary association, trust, joint stock company
or corporation. Such vote or a subsequent vote may in the event of or
in contemplation of proceedings for the dissolution of the corporation
also provide, subject to the rights of creditors and preferred
stockholders, for the distribution pro rata among the stockholders of
the corporation, of the proceeds of any such sale or exchange, whether
such proceeds be in cash or in securities as aforesaid (at values to be
determined by the board of directors).
6.10 No director of this corporation shall be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director notwithstanding any provision of law
imposing such liability; provided, however, that this Article shall not
eliminate or limit any liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Sections 61 or 62 of the Massachusetts Business Corporation Law, or
(iv) with respect to any transaction from which the director derived an
improper personal benefit.
No amendment or repeal of this Article shall adversely affect the
rights and protection afforded to a director of this corporation under this
Article for acts or omissions occurring while this Article is in effect.
- ------------------------------------------------------------------------------
We further certify that the foregoing restated articles of organization
effect no amendments to the articles of organization of the corporation as
heretofore amended, except amendments to the following articles:
None
8
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 9th day of December in the year 1987.
/s/ David B. Perini, President
- ------------------------------
/s/ Patricia A. Kelly, Clerk
- ----------------------------
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
I hereby approve the within restated articles of
organization and, the filing fee in the amount of
$150.00 having been paid, said articles are deemed to
have been filed with me this 8th day of January,
1988.
/s/ Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photocopy of Restated Articles of Organization to be
sent to:
CT Corporation System
2 Oliver Street
Boston, Massachusetts 02109
Telephone: (617) 482-4420
- --------------------------------------------------------------------------------
The Commonwealth of Massachusetts
Michael Joseph Connolly
Secretary of State
One Ashburton Place, Boston, Mass. 02108
9
Federal Identification No. 04-1717070
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
We, James M. Markert, Vice President and Robert E. Higgins, Clerk of Perini
Corporation located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701 do
hereby certify that these ARTICLES OF AMENDMENT affecting Articles NUMBERED 3 of
the Articles of Organization were duly adopted at a meeting held on May 19,
1994, by vote of 3,207,986 shares of Common Stock out of 4,330,807 shares
outstanding being at least a majority of each type, class or series outstanding
and entitled to vote thereon:
TO CHANGE the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
Common: Common 7,500,000 $1.00
Preferred: Preferred 1,000,000 $1.00
CHANGE the total authorized to:
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
Common Common 15,000,000 $1.00
Preferred Preferred 1,000,000 $1.00
The foregoing amendment will become effective when these articles of amendment
are filed in accordance with Chapter 156B, Section 6 of The General Laws unless
these articles specify, in accordance with the vote adopting the amendment, a
later effective date not more than thirty days after such filing, in which event
the amendment will become effective on such later date.
EFFECTIVE DATE: ___________
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereunto signed
our names this 27th day of June in the year 1994.
/s/ James M. Markert, Vice President
- ------------------------------------
10
/s/ Robert E. Higgins, Clerk
- ----------------------------
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
General Laws, Chapter 156B, Section 72
I hereby approve the within articles of amendment
and, the filing fee in the amount of $7,500.00 having
been paid, said articles are deemed to have been
filed with me this 7th day of July, 1994.
/s/Michael Joseph Connolly
MICHAEL J. CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photocopy of Articles of Amendment to be sent
To:
Matthew C. Lau, Esq.
Jacobs Persinger & Parker
77 Water Street, New York, NY 10005
Tel: (212) 344-1866
- --------------------------------------------------------------------------------
The Commonwealth of Massachusetts
Michael Joseph Connolly
Secretary of State
One Ashburton Place, Boston, Mass. 02108
Federal Identification No. 04-1717070
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
11
General Laws, Chapter 156B, Section 26
We, David B. Perini, President and Patricia A. Kelly, Clerk of Perini
Corporation located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701 do
hereby certify that at a meeting of the directors of the corporation held on
September 23, 1988, the following vote establishing and designating a series of
a class of stock and determining the relative rights and preferences thereof was
duly adopted:
See continuation sheets attached.
VOTED: That pursuant to the authority vested in the Board of Directors
of this Corporation in accordance with the provisions of its Articles of
Organization, a series of Preferred Stock of the Corporation is hereby created
and that the designation and amount thereof and the voting powers, preferences
and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Cumulative Preferred Stock" (the
"Series A Preferred Stock"), and the number of shares constituting such series
shall be 200,000.
Section 2. Dividends and Distributions.
(A) (i) The holders of shares of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable in cash on
the first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $20.00 or (b)
subject to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, par value $1.00 per share, of the
Corporation (the "Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock. The multiple of cash and non-cash dividends declared on the
Common Stock to which holders of the Series A Preferred Stock are entitled,
which shall be 100 initially but which shall be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Dividend Multiple". In
the event the Corporation shall at any time after September 23, 1988 (the
"Rights Declaration Date") declare or pay any dividend on
12
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the Dividend Multiple thereafter applicable to the determination of
the amount of dividends which holders of shares of Series A Preferred Stock
shall be entitled to receive shall be the Dividend Multiple applicable
immediately prior to such event multiplied by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(ii) Notwithstanding anything else contained in this paragraph
(A), the Corporation shall, out of funds legally available for that purpose,
declare a dividend or distribution on the Series A Preferred Stock as provided
in this paragraph (A) immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$20.00 per share on the Series A Preferred Stock shall nevertheless be paid out
of funds legally available for the purpose on such subsequent Quarterly Dividend
Payment Date.
(B) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
required by law, the holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of the stockholders of the Corporation. The
number of votes which a holder of a share of Series A Preferred Stock is
entitled to cast, as the same may be adjusted from time to
13
time as hereinafter provided, is hereinafter referred to as the "Vote Multiple".
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the Vote Multiple
thereafter applicable to the determination of the number of votes per share to
which holders of shares of Series A Preferred Stock shall be entitled shall be
the Vote Multiple immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If at any time dividends on any Series A Preferred Stock shall
be in arrears in an amount equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During
each default period, the holders of the Series A Preferred Stock shall have the
right to elect two (2) Directors.
(ii) During any default period, such voting right of the
holders of Series A Preferred stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that such voting right shall not be exercised unless the
holders of ten percent (10%) in number of shares of Series A Preferred Stock
outstanding shall be present in person or by proxy. The absence of a quorum of
the holders of Common Stock shall not affect the exercise by the holders of
Series A Preferred Stock of such voting right. At any meeting at which the
holders of Series A Preferred Stock shall exercise such voting right initially
during an existing default period, they shall have the right, voting as a class,
to elect Directors to fill such vacancies, if any, in the Board of Directors as
may then exist up to two (2) Directors or, if such right is exercised at an
annual meeting, to elect two (2) Directors. If the number which may be so
elected at any special meeting does not amount to the required number, the
holders of the Series A Preferred Stock shall have the right to make such
increase in the number of Directors as shall be necessary to permit the election
by them of the required number.
(iii) Unless the holders of Series A Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect Directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Series A Preferred Stock outstanding may
14
request, the calling of a special meeting of the holders of Series A Preferred
Stock, which meeting shall thereupon be called by the President, a Vice
President or the Clerk of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Series A Preferred Stock are entitled to vote
pursuant to this paragraph (C)(iii) shall be given to each holder of record of
Series A Preferred Stock by mailing a copy of such notice to him at his last
address as the same appears on the books of the Corporation. Such meeting shall
be called for a time not earlier than 20 days and not later than 60 days after
such order or request or, in default of the calling of such meeting within 60
days after such order or request, such meeting may be called on similar notice
by any stockholder or stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Series A Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors until the holders of Series A
Preferred Stock shall have exercised their right to elect two (2) Directors
voting as a class, after the exercise of which right (x) the Directors so
elected by the holders of Series A Preferred Stock shall continue in office
until their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of Directors
may (except as provided in paragraph (C)(ii) of this Section 3) be filled by
vote of a majority of the remaining Directors theretofore elected by the holders
of the class of stock which elected the Director whose office shall have become
vacant. References in this paragraph (C) to Directors elected by the holders of
a particular class of stock shall include Directors elected by such Directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Series A Preferred Stock to elect Directors shall
cease, (y) the term of any Directors elected by the holders of Series A
Preferred Stock as a class shall terminate, and (z) the number of Directors
shall be such number as may be provided for in the Articles of Organization or
by-laws irrespective of any increase made pursuant to the provisions of
paragraph (C)(ii) of this Section 3 (such number being subject, however, to
change thereafter in any manner provided by law or in the Articles of
Organization or by-laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding sentence may be filled by
a majority of the remaining Directors.
(D) Except as otherwise required by applicable law or as set forth
herein, holders of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are entitled
to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
15
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in
proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares
of any such parity stock in exchange for shares of
any stock of the Corporation ranking junior (either
as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of
stock ranking on a parity with the Series A Preferred
Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates
and other relative rights and preferences of the
respective series and classes, shall determine in
good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
16
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution shall
be made (x) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (1) $10,000.00 per share or
(2) an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to be distributed
per share to holders of Common Stock, or (y) to the holders of any other class
or series of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(x) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Neither the consolidation of nor merging of the Corporation with or
into any other corporation or corporations, nor the sale or other transfer of
all or substantially all of the assets of the Corporation, shall be deemed to be
a liquidation, dissolution or winding up of the Corporation within the meaning
of this Section 6.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or exchanged, plus
accrued and unpaid dividends, if any, payable
17
with respect to the Series A Preferred Stock. In the event the Corporation shall
at any time declare or pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. Redemption.
(A) For purposes of this Section 8, the following terms have the
meanings indicated:
(i) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such term is
hereinafter defined) and Associates (as such term is hereinafter defined) of
such Person, shall be the Beneficial Owner (as such term is hereinafter defined)
of 20% or more of the shares of Common Stock then outstanding, but shall not
include the Corporation, any subsidiary of the Corporation, any employee benefit
plan of the Corporation or any subsidiary thereof or any entity holding shares
of Common Stock organized, appointed or established by the Corporation or any
subsidiary thereof for or pursuant to the terms of any such plan.
(ii) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(iii) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own," any securities:
(a) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly (as
determined pursuant to Rule 13d-3 of the General Rules and Regulations
under the Exchange Act) or has the right to dispose of;
(b) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such
right is exercisable immediately or after the passage of time) pursuant
to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange rights,
rights (other than rights initially exercisable for Series A Preferred
Stock), warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates
or
18
Associates until such tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing); provided,
however, that a Person shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," any security under this clause (B) if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy given in response to a public
proxy or consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations of the Exchange Act and (2) is not
also then reportable by such person on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(c) which are beneficially owned, directly or indirectly, by any other
Person (or any Affiliate or Associate thereof) with which such Person
or any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable
proxy as described in clause (B) of subparagraph (b) of this paragraph
(iii)) or disposing of any securities of the Corporation.
(iv) "Disinterested Director" shall mean (A) any member of the
Corporation's Board of Directors who is not an officer or employee of the
Corporation or any of its subsidiaries and who is not an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person or nominee of an Acquiring
Person or any such Affiliate or Associate and was a member of the Corporation's
Board of Directors prior to the Rights Declaration Date, and (B) any Person who
subsequently becomes a member of the Company's Board of Directors who is not an
Acquiring Person or an Affiliate or an Associate of an Acquiring Person or
nominee of an Acquiring Person or any such Affiliate or Associate, if such
Person's nomination is recommended or approved by a majority of the
Disinterested Directors.
(v) "Person" shall mean any individual, firm, corporation
, partnership or other entity.
(B) Subject to Section 4 hereof, the Corporation may, at any time
(unless otherwise prevented by law) by the affirmative vote of a majority of the
directors then in office, including, if at the time of such vote there is an
Acquiring Person, a majority of the Disinterested Directors, redeem all or any
portion of the Series A Preferred Stock then outstanding. The amount per share
of Series A Preferred Stock to be redeemed to be paid upon any such redemption
shall be equal to $10,000.00 plus accrued and unpaid dividends, if any, payable
with respect thereto. The total sum payable per share of Series A Preferred
Stock on the date on which the Corporation redeems any shares of Series A
Preferred Stock (the "Redemption Date") is hereinafter referred to as the
"Redemption Price."
(C) If less than all of the outstanding shares of Series A Preferred
Stock are to be redeemed, the Corporation shall select the shares to be redeemed
by lot. Notice of redemption pursuant to this Section 8 shall be sent by
first-class mail, postage prepaid, to the holders of record of the shares of
Series A Preferred Stock to be redeemed at their respective addresses
19
as the same shall appear on the books of the Corporation. Such notice shall be
mailed not less than 30 nor more than 60 days in advance of the applicable
Redemption Date and shall specify the Redemption Date, the Redemption Price and
the place at which payment may be obtained as to such shares. At any time on or
after the Redemption Date applicable thereto, the holders of record of shares of
Series A Preferred Stock to be redeemed on such Redemption Date shall be
entitled to receive the Redemption Price therefor upon actual delivery to the
Corporation or its agent of the certificates representing the shares to be
redeemed.
If such notice of redemption shall have been duly given, and if on or
before any Redemption Date the funds necessary for such redemption (taking into
account any conversions) shall have been deposited by the Corporation with a
bank or trust company designated by the Board of Directors and having capital
and surplus of at least $50,000,000 in trust for the pro rata benefit of the
holders of the shares of Series A Preferred Stock so called for redemption,
then, notwithstanding that any certificate for shares of Series A Preferred
Stock so called for redemption shall not have been surrendered for cancellation,
from and after such Redemption Date (unless there shall have been a default in
payment of the Redemption Price) all shares of Series A Preferred Stock so
called for redemption shall no longer be deemed to be outstanding and all rights
with respect to such shares shall forthwith cease and terminate, except only the
right of the holders thereof to receive from such bank or trust company upon
surrender of their certificate or certificates at any time after the time of
such deposit the funds so deposited, without interest. The balance of any funds
so deposited and unclaimed at the end of one year from such Redemption Date
shall be released or repaid to the Corporation, after which the holders of the
shares so called for redemption shall look only to the Corporation for payment
thereof, without interest.
Section 9. Ranking. Unless otherwise provided in the Articles of
Organization of the Corporation or a Certificate of Vote of Directors
Establishing a Class of Stock relating to a subsequently-designated series of
Preferred Stock of the Corporation, the Series A Preferred Stock shall rank
junior to the Corporation's $21.25 Convertible Exchangeable Preferred Stock and
any other series of the Corporation's Preferred Stock, as to the payment of
dividends and the distribution of assets on liquidation, dissolution or winding
up and shall rank senior to the Common Stock.
Section 10. Amendment. The Articles of Organization of the Corporation
and this Certificate of Vote shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series A Preferred Stock so as to affect them adversely (within the meaning of
Section 77 of Chapter 156B of the Massachusetts General Laws) without the
affirmative vote of the holders of two-thirds or more of the outstanding shares
of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
20
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 23rd day of September in the year 1988.
/s/ David B. Perini, President
- ------------------------------
/s/ Patricia A. Kelly, Clerk
- ----------------------------
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors
Establishing a Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $75.00 having been paid,
said certificate is hereby filed this 27th day of
September, 1988.
/s/ Michael J. Connolly
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
Photo copy of Certificate to be sent
To:
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
Federal Identification No. 04-1717070
CERTIFICATE OF CORRECTION
21
(General Laws, Chapter 156B, Section 6A)
1. Exact name of corporation: Perini Corporation
2. Document to be corrected: Restated Articles of Organization
3. The above-mentioned document was filed with the Secretary of the
Commonwealth on January 8, 1988.
4. Please state the inaccuracy or defect in said document:
Article 4 of Exhibit A to the Restated Articles of Organization omitted
a description of a series of preferred stock (the "$21.25 Convertible
Exchangeable Preferred Stock"), which was established by a Certificate
of Vote of Directors filed with the Secretary on June 19, 1987.
5. Please state corrected version of the document:
The corrected Article 4 of Exhibit A to the Restated Articles of
Organization, including a description of the $21.25 Convertible
Exchangeable Preferred Stock, is attached hereto as Attachment A.
SIGNED UNDER THE PENALTIES OF PERJURY, this 8th day of August, 1996.
/s/ David B. Perini, President
- ------------------------------
/s/ Richard E. Burnham, Clerk
- -----------------------------
Attachment A to Certificate of Correction
4. If more than one class is authorized, a description of each of the
different classes of stock with, if any, the preferences, voting
powers, qualifications, special or relative rights or privileges as to
each class thereof and any series now established:
See Article 3 above; annexed to this Exhibit as Annex 4A is a
description of the preferences, voting powers, qualifications, special or
relative rights or privileges as to the $21.25 Convertible Exchangeable
Preferred Stock.
22
ANNEX 4A
(1) Designation. The series of the Preferred Stock created herein shall
consist of One Hundred Thousand (100,000) shares and shall be designated the
"$21.25 Convertible Exchangeable Preferred Stock." Said series is hereinafter
called the "Convertible Exchangeable Preferred Stock." The term "Preferred
Stock" as used herein shall mean the Preferred Stock authorized by the Restated
Articles of Organization, as amended, of the corporation and shall include the
Convertible Exchangeable Preferred Stock.
(2) Dividends. The holders of the Convertible Exchangeable Preferred
Stock shall be entitled to receive cash dividends when and as declared by the
Board of Directors out of funds legally available for such purposes, at the
annual rate of twenty-one and one quarter Dollars ($21.25) per share, and no
more, payable in quarterly installments on the 15th day of March, June,
September and December of each year (unless any such day is a non-business day,
in which event the next business day shall be the payment date) commencing on
September 15, 1987. Dividends on the Convertible Exchangeable Preferred Stock
shall begin to accrue and shall be cumulative from the date of original issue of
such shares (the "Issue Date") and shall be payable to the holders of record on
the record date fixed with respect to such payment. The date on which the
corporation initially issues any share of Convertible Exchangeable Preferred
Stock shall be its date of issue regardless of the number of times of transfer
of such share is made on the stock records of the corporation and regardless of
the number of certificates which may be issued to evidence such shares.
Accumulations of dividends on the Convertible Exchangeable Preferred Stock shall
not bear interest. If at any time the corporation pays less than the total
amount of dividends then accrued upon the Convertible Exchangeable Preferred
Stock and any other stock ranking on a parity as to dividends with the
Convertible Exchangeable Preferred Stock, dividends declared upon shares of
Convertible Exchangeable Preferred Stock and such other stock shall be declared
pro rata so that in all cases the amount of dividends declared per share on the
Convertible Exchangeable Preferred Stock and such other stock shall bear to each
other the same ratio that accumulated dividends per share on the shares of
Convertible Exchangeable Preferred Stock and such other stock bear to such
other.
Dividends payable on September 15, 1987 and on the date on any
redemption of the Convertible Exchangeable Preferred Stock not occurring on a
regular dividend payment date, shall be calculated on the basis of the actual
number of days elapsed (including the date of redemption) over a 360-day year.
Except as set forth above, in no event (so long as any Convertible
Exchangeable Preferred Stock shall remain outstanding) shall any cash dividends
whatsoever be declared or paid upon, nor shall any cash distribution be made
upon, the Common Stock, or any other stock of the corporation ranking junior to
or on a parity with the Convertible Exchangeable Preferred Stock as to dividends
unless full cumulative dividends on all outstanding shares of Convertible
Exchangeable Preferred Stock for all dividend payment periods terminating on or
prior to the date of the payment of such dividends shall have been paid or
declared and funds therefor set apart for such payment.
23
(3) Voting Rights. The holders of Convertible Exchangeable Preferred
Stock shall not, by virtue of their ownership thereof, be entitled to vote upon
any matter except as provided by this Clause (3) or as required by law. Whenever
the holders of the Convertible Exchangeable Preferred Stock shall be entitled to
exercise voting rights, each holder of record thereof shall have one vote for
each share so held.
If the equivalent of six (6) quarterly dividends payable on the
Convertible Exchangeable Preferred Stock is in arrears, the number of directors
of the corporation will be increased by two (2) and the holders of outstanding
Convertible Exchangeable Preferred Stock together with the holders of any
outstanding series of Preferred Stock ranking on a parity with the Convertible
Exchangeable Preferred Stock as to dividends or liquidation rights and as to
which the equivalent of six (6) quarterly dividends is in arrears (but only if
the holders of the shares of such other series would otherwise have a right to
elect directors as a result of a dividend arrearage), voting as a single class
without regard to series, will be entitled to elect the additional two directors
at a special meeting called for that purpose as hereinafter provided, or at any
annual meeting of stockholders. When such voting rights shall have vested in the
holders of the Convertible Exchangeable Preferred Stock, a special meeting to
elect such directors may be called by the Chief Executive Officer or Chairman of
the Board of the corporation or by the holders of 25% or more of the shares of
Preferred Stock of all series affected, in the manner provided in the
corporation's By-laws, or by law if no such provision is in effect. Whenever all
dividends in arrears have been paid or declared and funds therefor set apart for
payment, the number of directors of the corporation shall be reduced by two (2)
and such additional directors elected pursuant to this Clause (3) shall
forthwith cease to be directors and the contingent voting rights provided herein
for the election of two (2) directors shall cease, subject always to the same
provisions for the vesting of such contingent voting rights of the holders of
the Convertible Exchangeable Preferred Stock to elect two (2) directors in the
case of future dividend defaults.
In addition, without the vote of the holders of at least two-thirds
(2/3) of the number of shares of Convertible Exchangeable Preferred Stock then
outstanding, voting together as a class with the holders of any other
outstanding shares of Preferred Stock similarly affected, the corporation shall
not (i) amend, alter or repeal any of the preferences or rights of the holders
of the Convertible Exchangeable Preferred Stock so as to adversely affect such
preferences and rights, or (ii) create any class of stock ranking prior to the
Convertible Exchangeable Preferred Stock with respect to dividends or to the
distribution of assets in liquidation. Notwithstanding the foregoing sentence,
without the vote of a majority of the shares of the Convertible Exchangeable
Preferred Stock then outstanding, voting as a class, the corporation shall not
create any class of stock ranking on a parity with the Convertible Exchangeable
Preferred Stock with respect to dividends or to the distribution of assets in
liquidation.
(4)(A) Optional Redemption. The shares of Convertible Exchangeable
Preferred Stock may be redeemed at the option of the corporation, as a whole or
in part, at any time or from time to time, at the redemption prices referred to
below, provided that the Convertible Exchangeable Preferred Stock may not be
redeemable prior to June 15, 1990 unless the
24
Closing Price (as hereinafter defined) of the Common Stock shall have equaled or
exceeded 150% of the conversion price for at least twenty (20) trading days
within thirty (30) consecutive trading days ending not more than five (5)
trading days prior to the date notice of redemption is given. For purposes of
this Clause (4), "Closing Price" shall mean the closing price of the Common
Stock on the principal national securities exchange on which such stock may be
listed or, if such stock is not then so listed, the closing price of the Common
Stock as shown by the National Association of Securities Dealers, Inc. National
Market or, if no such closing price is available, the average of the
representative last bid and asked prices of such Common Stock in the
over-the-counter market, as shown by the National Association of Securities
Dealers, Inc. Automated Quotation System Level I (or comparable system). The
redemption price payable shall be the then applicable price per share specified
below in effect on the date fixed for redemption plus dividends accrued and
unpaid on the shares to be redeemed, whether or not declared:
If redeemed during Redemption If redeemed during Redemption
the 12-month period Price Per the 12-month period Price Per
beginning June 15, Share beginning June 15, Share
1987 271.250 1992 260.625
1988 269.125 1993 258.500
1989 267.000 1994 256.375
1990 264.875 1995 254.250
1991 262.750 1996 252.125
and on or after June 15, 1997 at the redemption price of Two Hundred Fifty
Dollars ($250) per share, plus accrued and payable dividends to the date fixed
for redemption. If full cumulative dividends on the Convertible Exchangeable
Preferred Stock have not been paid in full, no shares of Convertible
Exchangeable Preferred Stock may be redeemed and the corporation may not
purchase or acquire any shares unless (i) the holders of two-thirds (2/3) of the
shares of the Convertible Exchangeable Preferred Stock shall have consented
thereto, or (ii) the corporation purchases or acquires any shares of the
Convertible Exchangeable Preferred Stock pursuant to a purchase or exchange
offer made on the same terms to all holders of the Convertible Exchangeable
Preferred Stock.
There is no mandatory redemption or sinking fund obligation with
respect to the Convertible Exchangeable Preferred Stock.
(B) Selection for Redemption. If less than all of the
outstanding shares of the Convertible Exchangeable Preferred Stock are to be
redeemed, the corporation will select the shares to be redeemed by lot, provided
that only whole shares shall be selected for redemption.
(C) Redemption Procedure. Notices of any redemption shall
be mailed (i) not less than thirty (30) nor more than sixty (60) days prior
to the date fixed for redemption to
25
the holders of shares of the Convertible Exchangeable Preferred Stock to be
redeemed at their respective addresses as the same appear upon the books of the
corporation; provided, however, that no defect in the mailing of such notice to
a holder shall affect its sufficiency with respect to other holders. Payment of
the redemption price of the shares redeemed shall be made at such place or
places of redemption as shall be determined by the Board of Directors of the
corporation and shall be specified in the notice of redemption and shall be made
against the surrender for cancellation of the certificates for the shares
redeemed. Any shares of Convertible Exchangeable Preferred Stock so noticed for
redemption may be converted into shares of Common Stock, as hereinafter
provided, at any time prior to the close of business on the date fixed for
redemption.
If notice of redemption shall have been mailed as hereinbefore provided
and if on or before the redemption date specified in such notice all funds
necessary for such redemption shall have been set aside by their corporation so
as to be available for the benefit of the holders of the shares so called for
redemption, then from and after the date fixed for the redemption the shares of
Convertible Exchangeable Preferred Stock so called for redemption,
notwithstanding that any certificate therefor shall not have been surrendered or
canceled, shall no longer be deemed outstanding, dividends thereon shall cease
to accrue and all rights of the holders with respect to such shares (including,
without limitation, the conversion rights provided for in Clause (6)) shall
forthwith on the redemption date cease and terminate, except only the right of
the holders thereof to receive upon surrender of certificates therefor the
amount payable upon redemption thereof, but without interest. Any shares of
Convertible Exchangeable Preferred Stock so noticed for redemption may be
converted into shares of Common Stock, as hereinafter provided, at any time
prior to the close of business on the date fixed for redemption.
(5)(A) Optional Exchange. In addition to the optional redemption rights
of the corporation as set forth in Clause (4) above, at the option of the
corporation the Convertible Exchangeable Preferred Stock shall be exchangeable
in whole but not in part on any dividend payment date beginning June 15, 1989
for the corporation's 8 1/2% Convertible Subordinated Debentures Due 2012 (the
"Debentures") to be issued substantially in the form set forth in the form of an
Indenture filed with the Securities and Exchange Commission as an Exhibit to the
corporation's Registration Statement on Form S-2 relating to the Convertible
Exchangeable Preferred Stock, Registration No. 33-14434 (the "Registration
Statement"). No such exchange shall be made unless all dividends accrued and
payable on the Convertible Exchangeable Preferred Stock to the date of the
exchange have been paid or declared and sufficient amounts set aside for their
payment. Upon election by the corporation to exchange the Convertible
Exchangeable Preferred Stock, each share of Convertible Exchangeable Preferred
Stock will be exchangeable for $250 principal amount of Debentures.
(B) Notice of Exchange. Notice of any exchange of the
Convertible Exchangeable Preferred Stock shall be mailed not less than thirty
(30) and not more than sixty (60) days prior to the date fixed for such exchange
to each holder of Convertible Exchangeable Preferred Stock, at such holder's
address as it appears on the books of the corporation,
26
specifying the effective date of the exchange and the place where certificates
for shares of the Convertible Exchangeable Preferred Stock are to be surrendered
for Debentures and stating that dividends on shares of the Convertible
Exchangeable Preferred Stock will cease to accrue on and after the date of
exchange; provided, however, that no defect in the mailing of such notice shall
affect the validity of the proceedings for the exchange of any shares of the
Convertible Exchangeable Preferred Stock.
(C) Indenture; Opinion of Counsel. Prior to giving notice of
intention to exchange pursuant to Clause (5)(B) above, the corporation and a
bank or trust company selected by the corporation shall execute and deliver the
Indenture substantially in the form filed as an Exhibit to the Registration
Statement with such changes as may be required by law, stock exchange rule or
usage or that do not adversely affect the interests of the holders of the
Debentures. A copy of the Indenture may be inspected by the holders of any
shares of Convertible Exchangeable Preferred Stock at the offices of the
corporation during normal business hours. The corporation will not give notice
of its intention to exchange pursuant to Clause (5)(B) above unless it shall
file at the office or agency of the corporation maintained for the exchange of
Convertible Exchangeable Preferred Stock an opinion of counsel (who may be an
employee of the corporation) that the Indenture has been duly authorized,
executed and delivered by the corporation, has been duly qualified under the
Trust Indenture Act of 1939 (or that such qualification is not necessary) and
constitutes a valid and binding instrument enforceable against the corporation
in accordance with its terms (subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles, and subject to such other
qualifications as are then contained in opinions of counsel experienced in such
matters), and to the effect that the Debentures have been duly authorized and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered in exchange for the shares of Convertible Exchangeable
Preferred Stock, will constitute valid and binding obligations of the
corporation entitled to the benefits of the Indenture (subject as aforesaid);
and that the exchange of Debentures for the Convertible Exchangeable Preferred
Stock will not violate the laws of the state of incorporation of the
corporation; and that neither the execution and delivery of the Indenture or the
Debentures nor compliance with the terms, conditions or provisions of such
instruments will result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust or other agreement or instrument, known to such counsel, to which the
corporation or any of its subsidiaries is a party or by which it or any of them
is bound, or any decree, judgment, order, rule or regulation, known to counsel,
of any court or governmental agency or body having jurisdiction over the
corporation and such subsidiaries or any of their properties; and that the
Debentures have been duly registered for such exchange with the Securities and
Exchange Commission under a registration statement that has become effective
under the Securities Act of 1933 (the "Act") or that the exchange of the
Debentures for the shares of Convertible Exchangeable Preferred Stock is exempt
from registration under the Act.
(D) Exchange Procedure. If on the date fixed for
exchange, the corporation has taken all action required to authorize the
issuance of the Debentures in exchange for the
27
Convertible Exchangeable Preferred Stock then, notwithstanding that the
certificates for such shares have not been surrendered for cancellation, from
and after the date fixed for exchange the shares of Convertible Exchangeable
Preferred Stock shall no longer be deemed outstanding, dividends thereon shall
cease to accrue and all rights of the holders with respect to such shares
(including, without limitation, the conversion rights provided for in Clause
(6)) shall terminate, except only the rights to receive dividends accrued and
unpaid as of the date of exchange and, upon surrender of certificates therefor,
the right to receive the Debentures, and the person or persons entitled to
receive the Debentures issuable upon exchange shall be treated for all purposes
as the registered holder or holders of such Debentures. Upon due surrender of a
certificate representing shares of Convertible Exchangeable Preferred Stock, the
holder thereof shall receive the principal amount of Debentures to which such
holder is thereby entitled. Any shares of Convertible Exchangeable Preferred
Stock so noticed for exchange may be converted into shares of Common Stock, as
hereinafter provided, at any time prior to the close of business on the date
fixed for exchange.
(6) Conversion Rights.
(A) Conversion Provisions. At any time subsequent to the Issue
Date, the holders of any one or more shares of the Convertible Exchangeable
Preferred Stock may, at their option, convert such share or shares, on the terms
and conditions set forth in this Clause (6), into fully paid and non-assessable
shares of Common Stock except that, with respect to any shares of Convertible
Exchangeable Preferred Stock called for redemption or exchange, the conversion
right shall terminate at the close of business on the date of redemption or
exchange, unless default is made in the payment of the redemption or exchange
price. Each shares of the Convertible Exchangeable Preferred Stock shall be
convertible into 6.62252 shares of Common Stock (equivalent to a conversion
price of $37.75 per share); provided; however, that the number of shares of
Common Stock issuable on conversion of each share of the Convertible
Exchangeable Preferred Stock (the "conversion rate") shall be subject to
adjustments in accordance with the provisions hereinafter set forth in this
Clause (6).
(B) Adjustment for Change in Capital Stock. If the
corporation
(i) pays a dividend or makes a distribution on its Common
Stock, in shares of its Common Stock;
(ii) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(iii) combines its outstanding shares of Common Stock into
a smaller number of shares;
(iv) makes a distribution on its Common Stock in shares of
its capital stock other than Common Stock; or
28
(v) issues by reclassification of its Common Stock any
shares of its capital stock;
then the conversion privilege and the conversion price in effect immediately
before such action shall be adjusted so that the holder of the Convertible
Exchangeable Preferred Stock thereafter converted may receive the number of
shares of capital stock of the corporation which he would have owned immediately
following such action if he had converted the Convertible Exchangeable Preferred
Stock immediately before the record date (or, if no record date, the effective
date) for such action. The adjustment shall become effective immediately after
the record date in the case of a dividend or distribution and immediately after
the effective date in the case of a subdivision, combination or
reclassification.
If after an adjustment a holder of the Convertible Exchangeable
Preferred Stock upon conversion of it may receive shares of two or more classes
of capital stock of the corporation, the corporation shall determine the
allocation of the adjusted conversion price between the classes of capital
stock. After such allocation, the conversion privilege and conversion price of
each class of capital stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock contained in this Clause (6).
(C) Adjustment for Rights Issue. If the corporation
distributes any rights or warrants to the holders of its Common Stock entitling
them for a period expiring within sixty (60) days after the record date
mentioned below to purchase shares of Common Stock at a price per share less
than the current market price per share on that record date, the conversion
price shall be adjusted in accordance with the formula:
O + N x P
-----
C1 = C x M
---------
O + N
where
C1 = the adjusted conversion price.
C = the current conversion price.
O = the number of shares of Common Stock outstanding on the record
date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the
record date.
The adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive the rights or
warrants. Such adjustment shall be made successively whenever such a record date
is fixed; and in the event that such rights or warrants are not exercised prior
to the expiration therefor, the conversion price shall again be
29
adjusted to be the conversion price which would then be in effect if such record
date had not been fixed.
(D) Adjustment For Other Distributions. If the corporation
distributes to the holders of its Common Stock any of its assets or debt
securities or any rights or warrants to purchase securities of the corporation,
the conversion price shall be adjusted in accordance with the formula:
C1 = C x M - F
-----
M
where
C1 = the adjusted conversion price.
C = the current conversion price.
M = the current market price per share of
Common Stock on the record date mentioned
below.
F = the fair market value on the record date
of the assets, securities, rights or
warrants applicable to one share of Common
Stock. The corporation shall determine the
fair market value.
The adjustment shall become effective immediately after the record date
for the determination of stockholders entitled to receive the distribution. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the conversion price shall
again be adjusted to the conversion price which would then be in effect if such
record date had not been fixed.
This Sub-Clause (D) does not apply to cash dividends or cash
distributions paid out of earnings or surplus as shown on the books of the
corporation. Also, this Sub-Clause (D) does not apply to rights or warrants
referred to in Sub-Clause (C) above.
(E) Adjustment for Reorganization. In case of any
consolidation or merger of the corporation into another corporation, or in the
case of any merger of another corporation into the corporation (other than a
merger with a corporation in which merger the corporation is the continuing
corporation and which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock), or in case of
any lease or transfer to another corporation of all or substantially all of the
assets of the corporation, the holder of each share of the Convertible
Exchangeable Preferred Stock then outstanding shall have the right thereafter,
subject to the terms and conditions of this Clause (6), to convert such share
into the kind and amount of shares of stock and other securities and property
receivable upon such consolidation, merger, lease or transfer by a holder of the
number of shares of Common Stock into which such share of Convertible
Exchangeable Preferred Stock might have been converted immediately prior to such
consolidation, merger, lease or transfer; and effective provision shall be made
in the Articles of Organization or Charter of the resulting or surviving
corporation or otherwise so that the provisions set forth
30
in this Clause (6) shall thereafter be applicable, as nearly as practicable, to
any such other shares of stock and other securities and property deliverable
upon conversion of the Convertible Exchangeable Preferred Stock remaining
outstanding or other convertible exchangeable preferred stock received by the
holders in place thereof; and any such resulting or surviving corporation shall
expressly assume the obligation to deliver, upon the exercise of the conversion
privilege, such shares, securities or property as the holders of the Convertible
Exchangeable Preferred Stock remaining outstanding, or other convertible
preferred stock received by the holders in place thereof, may be entitled to,
and to make provision for the protection of the conversion right as herein
provided (unless the corporation assumes such obligation). In case securities or
property other than shares of Common Stock shall be issuable or deliverable upon
conversion as aforesaid, then all reference in this Sub-Clause (E) shall be
deemed to apply, so far as appropriate and as nearly as practicable, to such
other securities or property. The provisions of this Sub-Clause (E) shall
similarly apply to successive reorganizations, consolidations, mergers, leases
or transfers.
(F) Current Market Price. For the purposes of any computation
under this Clause (6), the current market price per share of Common Stock at any
date shall be deemed to be the average of the daily closing prices for any
thirty (30) consecutive business days selected by the corporation commencing not
more than forty-five (45) business days before the date in question. The closing
price for each day shall be the last reported sale of Common Stock on the
principal national securities exchange on which the Common Stock may be listed
or if such stock is not then so listed, the closing price of the Common Stock as
shown by the National Association of Securities Dealers, Inc. National Market
or, if no such closing price is available, at the average of the representative
last bid and asked prices of such Common Stock in the over-the-counter market,
as shown by the National Association of Securities Dealers, Inc. Automated
Quotation System Level I (or comparable system) or in the absence of any of the
foregoing, the fair market value as determined by the Board of Directors (whose
determination shall be conclusive).
(G) Fractional Shares. No fractional shares of Common Stock
shall be issued on any conversion, but in lieu thereof the corporation shall pay
in cash an amount equal to the current market value of such fractional interest
computed on the basis of the closing price as determined in accordance with the
provision of Sub-Clause (F) above, on the last trading day prior to the date
upon which conversion is deemed to have been effected. Any determination that
the corporation or the Board of Directors makes regarding fractional shares is
conclusive.
(H) When No Adjustment Required. No adjustment need be made
for a transaction referred to in Sub-Clause (B), (C) or (D) above if the holders
of the Convertible Exchangeable Preferred Stock are to participate in the
transaction on a basis and with notice that the Board of Directors determines to
be fair and appropriate in light of the basis and notice on which holders of
Common Stock participate in the transaction.
31
Notwithstanding the provisions of Sub-Clauses (B), (C), (D) and (E)
above, no adjustment of the conversion rate shall be required unless such
adjustment would require an increase or decrease of at least 1% conversion rate,
but in such case any adjustment that would otherwise be in the required then to
be made shall be carried forward and shall be made at the time of and together
with the next subsequent adjustment. All calculations under this Clause (6)
shall be made and rounded to the nearest one-hundredth of a share or the nearest
cent, as the case may be.
No payment or adjustment on account of dividends accumulated or in
arrears upon shares of the Conversion Exchangeable Preferred Stock, any other
series of Preferred Stock, or Common Stock, shall be made in connection with any
conversion, except as may otherwise be provided at the discretion of the Board
of Directors and except as provided hereinafter. Shares of Convertible
Exchangeable Preferred Stock surrendered for conversion during the period
between the date fixed as the record date for the payment of a dividend and the
date fixed as the dividend payment date must be accompanied by payment to the
corporation of an amount equal to the dividend payable on such shares on the
dividend payment date, provided, however, that if the corporation fixes a date
for redemption or for exchange of such shares of Convertible Exchangeable
Preferred Stock which is after such record date for the payment of dividends and
before such dividend payment date, then shares of Convertible Exchangeable
Preferred Stock surrendered for conversion after such record date and before
such dividend payment date need not be accompanied by payment to the corporation
of an amount equal to the dividend on such shares payable on such dividend
payment date.
No adjustment need be made for sales of Common Stock pursuant to a plan
for reinvestment of dividends or interest and no adjustment need to be made for
a change in the par value of the Common Stock.
No adjustment need be made in connection with the issuance of shares of
Common Stock upon conversion of the Convertible Exchangeable Preferred Stock or
the issuance of (including the issuance of awards, rights and options to
purchase) shares of Common Stock to employees or other eligible persons of the
corporation under plans duly adopted by the stockholders of the corporation.
The Board of Directors shall have the power to resolve any ambiguity or
correct any error in this Clause (6) and its action in so doing, as evidenced by
a Board resolution, shall be final and conclusive.
The certificate of any independent firm of public accountants of
recognized standing selected by the Board of Directors shall be satisfactory
evidence of the correctness of any computation made in this Clause (6).
(I) Notice of Adjustment. Whenever there is an adjustment
requiring a change in the conversion rate, the corporation shall file with the
transfer agent, or transfer agents, for the Convertible Exchangeable Preferred
Stock, a statement signed by the Secretary
32
of the corporation, describing specifically the event giving rise to such
adjustment and stating the adjustment which shall be made to the conversion
rate. The statement so filed shall be open to inspection by any holder of record
of shares of the Convertible Exchangeable Preferred Stock. The corporation shall
at that time of filing any such statement mail notice to the same at their
addresses appearing on the books of the corporation or supplied by them to the
corporation for the purpose of notice. In addition, the corporation shall
include a notice of the conversion rate with each dividend payment on the
Convertible Exchangeable Preferred Stock or otherwise give notice thereof
promptly after the due date for each such dividend, whenever there has been a
change in the conversion rate since the last previous dividend due date.
(J) Conversion Procedure. Upon surrender to the corporation at
the office of the transfer agent, or transfer agents, for the Convertible
Exchangeable Preferred Stock, or at such other place or places, if any, as the
Board of Directors of the corporation may determine, of certificates, duly
endorsed to the corporation or in blank, for shares of Convertible Exchangeable
Preferred Stock to be converted, together with appropriate evidence of the
payment of any transfer or similar tax, if required, and instructions in writing
to the corporation to convert such shares and specifying the name and address of
the person, corporation, firm or other entity to whom such shares are to be
issued, the corporation will issue (i) the number of full shares of Common Stock
issuable on conversion thereof as of the time of such surrender and as promptly
as practicable thereafter will deliver certificates for such shares of Common
Stock, and (ii) cash for any remaining fraction of a share, as provided in
Sub-Clause (G) above. The corporation shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of shares of Common Stock upon
conversion; provided, however, that the holder shall pay any such tax which is
due because such shares are to be issued in a name other than that of such
holder.
The corporation shall at all times after the Issue Date reserve for
issuance upon conversion of the Convertible Exchangeable Preferred Stock a
sufficient number of full shares of Common Stock for the conversion of each
outstanding share of Convertible Exchangeable Preferred Stock at the current
conversion rate.
(K) Notice of Certain Transactions. If
(i) the corporation takes any action that would require
an adjustment in the conversion rate pursuant to
Sub-Clauses (B), (C), (D) and (E) of this Clause (6);
or
(ii) there is a voluntary or involuntary liquidation,
dissolution or winding-up of the corporation;
the corporation shall provide notice in the manner set forth in Sub-Clause (I)
of this Clause (6) of such action, stating therein the proposed date for a
distribution or the effective date of a reclassification, consolidation, merger,
lease, transfer, liquidation, dissolution or winding-up,
33
at least fifteen (15) days in advance of such date. Failure to mail the notice
or any defect therein shall not affect the validity of the transaction.
(L) Reduction of Conversion Price Below Par Value of Common
Stock. Before taking any action which would cause an adjustment reducing the
conversion price below the then par value (if any) of the Common Stock
deliverable upon conversion of the Convertible Exchangeable Preferred Stock, the
corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the corporation may validly and legally
issue fully paid and non-assessable shares of Common Stock at such adjusted
conversion price.
(M) Decrease in Conversion Price. The corporation from time to
time may decrease the conversion price by any amount for any period of time if
the period is at least 20 days and if the decrease is irrevocable during the
period. Whenever the conversion price is decreased, the corporation shall give
notice of the decrease at least 15 days prior to the date the decreased
conversion price takes effect, in the manner set forth in Sub-Clause (I) above,
which notice shall state the decreased conversion price and the period it will
be in effect. A decrease in the conversion price pursuant to this Sub-Clause (M)
shall not otherwise change or adjust the conversion price otherwise in effect
for purposes of this Clause (6).
(7) Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the corporation, the holders of the shares of the Convertible
Exchangeable Preferred Stock shall be entitled to receive out of the assets of
the corporation available for distribution to stockholders, before any
distribution of assets is made to holders of Common Stock or any other stock of
the corporation ranking junior to the Convertible Exchangeable Preferred Stock
as to liquidation, distributions in an amount equal to the then applicable
redemption price, as set forth in Clause (4) hereof, in the case of a voluntary
liquidation, dissolution or winding up, or in the case of an involuntary
liquidation, dissolution or winding up an amount equal to Two Hundred Fifty
Dollars ($250) per share, plus in either case, an amount equal to the
accumulated and unpaid dividends thereon.
If upon voluntary or involuntary liquidation, dissolution or winding
upon of the corporation, the amounts payable with respect to the Convertible
Exchangeable Preferred Stock and any other shares of stock of the corporation
ranking as to any such distribution on a parity with the Convertible
Exchangeable Preferred Stock are not paid in full, the holders of the
Convertible Exchangeable Preferred Stock and of such other shares shall share
ratably in any such distribution of assets of the corporation in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount of liquidating distribution to which they are
entitled, the holders of shares of Convertible Exchangeable Preferred Stock
shall not be entitled to any further participation in any distribution of assets
by the corporation.
Neither the consolidation of nor merging of the corporation with or
into any other corporation nor corporations, nor the lease or transfer of all or
substantially all of the assets of
34
the corporation shall be deemed to be a liquidation, dissolution or a winding up
of the corporation within the meaning of any of the provisions of this Clause
(7).
(8) Status of Shares Redeemed, Exchanged or Converted. All shares of
Convertible Exchangeable Preferred Stock redeemed, exchanged or converted
pursuant to Clause (4), (5) or (6) hereof and all shares of the Convertible
Exchangeable Preferred Stock otherwise reacquired by the corporation and
subsequently canceled shall be restored to the status of authorized and unissued
Preferred Stock undesignated as to series subject to reissuance by the Board of
Directors.
(9) Subdivision of Shares. The Board of Directors may at any time
subdivide the shares of Convertible Exchangeable Preferred Stock as of an
effective date fixed by the Board of Directors. Except as otherwise provided by
law, notice of the proposed subdivision and the effective date shall be mailed
to each holder of record of Convertible Exchangeable Preferred Stock not less
than fifteen (15) days before the effective date. The dividend rate, conversion
rate and liquidation rights in effect immediately prior to the close of business
on the effective date of such subdivision shall be proportionately reduced as of
the close of business on the effective date of such division.
(10) "Common Stock" Defined. Whenever reference is herein made to
"Common Stock," "Common Stock" shall mean any stock of any class of the
corporation which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the corporation and which is not subject to redemption by the
corporation. However, Common Stock issuable upon conversion of the Convertible
Exchangeable Preferred Stock shall include only shares of the class designated
as Common Stock as of the original date of issuance of shares of the Convertible
Exchangeable Preferred Stock, or shares of the corporation of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding-up of
the corporation and which are not subject to redemption by the corporation;
provided that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from such
reclassifications bears to the total number of shares of all classes resulting
from all such reclassifications.
(11) No Preemptive Rights. The holders of the Convertible Exchangeable
Preferred Stock shall not have any preemptive rights.
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary
One Ashburton Place, Boston, Massachusetts 02108-1512
35
Federal Identification No. 04-1717070
CERTIFICATE OF VOTE OF DIRECTORS
ESTABLISHING A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
We, David B. Perini, President and Richard E. Burnham, Clerk of Perini
Corporation located at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701 do
hereby certify that at a meeting of the directors of the corporation held on
January 10, 1997, the following vote establishing and designating a series of a
class of stock and determining the relative rights and preferences thereof was
duly adopted:
That pursuant to the authority vested in the Board of Directors of this
Corporation in accordance with the provisions of its Restated Articles of
Organization, as amended, a series of Preferred Stock (the "Series B Cumulative
Convertible Preferred Stock") of the Corporation be, and it hereby is, created
and that the designation and amount thereof and the voting powers, preferences
and relative, participating, optional and other special rights of the shares of
such series, and the qualifications, limitations and restrictions thereof are as
set forth on Exhibit A hereto.
EXHIBIT A
Series B Cumulative Convertible Preferred Stock
1. Designation and Amount. There shall be a series of Preferred Stock
designated as "Series B Cumulative Convertible Preferred Stock" and the number
of shares constituting such series shall be 500,000, of which 150,150 shall be
issued initially (the date of such issuance, the "Original Issue Date") and the
remainder shall be reserved for issuance as dividends pursuant to Section 3
below. The number of shares designated as shares of Series B Cumulative
Convertible Preferred Stock may be decreased (but not increased) by the Board of
Directors without a vote of stockholders; provided, however, that such number
may not be decreased without the approval of the holders of 66-2/3% of the then
outstanding shares of Series B Cumulative Convertible Preferred Stock.
2. Preemptive Rights. Holders of shares of Series B Cumulative
Convertible Preferred Stock are not entitled to any preemptive or subscription
rights in respect of any securities of the Corporation.
36
3. Dividends.
(a) The holders of shares of Series B Cumulative Convertible
Preferred Stock shall be entitled to receive, when and as authorized and
declared by the Board of Directors out of funds at the time legally available
therefor, dividends at the Cash Dividend Rate (defined below) per annum times
the Liquidation Preference (defined below in Section 4(a)) if paid in cash, or
at the In-Kind Dividend Rate (defined below) per annum times the Liquidation
Preference if paid in additional shares of Series B Cumulative Convertible
Preferred Stock, and no more, which shall be fully cumulative, shall accrue with
respect to any such share from the original date of issuance of such share
without interest and shall be payable quarterly in arrears on March 15, June 15,
September 15 and December 15 of each year (a "Dividend Payment Date"),
commencing March 15, 1997 (except that if any such date is a Saturday, Sunday or
legal holiday, then such dividend shall be payable on the next day that is not a
Saturday, Sunday or legal holiday) to holders of record as they appear upon the
stock transfer books of the Corporation on each March 1, June 1, September 1 and
December 1 immediately preceding the payment dates, or such other dates as shall
be fixed at the time of the authorization and declaration by the Board of
Directors (or, to the extent permitted by applicable law, a duly authorized
committee thereof), which date shall not be less than ten (10) nor more than
sixty (60) days preceding the relevant dividend payment date. For purposes
hereof, the term "legal holiday" shall mean any day on which banking
institutions are authorized to close in New York, New York. The amount of
dividends payable per share of Series B Cumulative Convertible Preferred Stock
for each quarterly dividend period shall be computed by dividing the annual
dividend amount by four and shall include fractional shares. The amount of
dividends payable for the initial dividend period and any period shorter than a
full quarterly period during which shares are outstanding shall be computed on
the basis of a 360-day year of twelve 30-day months and the actual number of
days elapsed in the period in which payable. No interest shall be payable in
respect of any dividend payment on the Series B Cumulative Convertible Preferred
Stock or any other Parity Dividend Stock (as hereinafter defined) which may be
in arrears. The "Cash Dividend Rate" shall be 9 percent per annum if a Special
Default (defined below) has occurred and is continuing at any time during the
applicable Annual Payment Period (defined below) or Semiannual Payment Period
(defined below), and shall be 7 percent per annum at all other times. The
"In-Kind Dividend Rate" shall be 12 percent per annum if a Special Default has
occurred and is continuing at any time during the applicable Annual Payment
Period or Semiannual Payment Period, and shall be 10 percent per annum at all
other times.
37
(b) Any dividend payments may be made, in the sole discretion
of the Board of Directors, as follows (for purposes of this determination, the
Designated Directors (defined below in Section 13) shall not vote):
(i) Prior to December 15, 1999:
(1) on or prior to the Original Issue Date and prior to
December 15, 1997 and 1998, the Board of Directors shall determine
whether dividend payments payable on the next four Dividend Payment
Dates beginning December 15 (each, an "Annual Payment Period") shall be
paid in (i) cash or (ii) additional shares of Series B Cumulative
Convertible Preferred Stock valued at the Liquidation Preference (but
not in any combination of cash and additional shares of Series B
Cumulative Convertible Preferred Stock); provided, however, that the
first Annual Payment Period shall commence March 15, 1997, and run for
three Dividend Payment Dates if the Original Issue Date is between
December 15, 1996 and March 15, 1997;
(2) in the event that, during an Annual Payment Period when
the Board has elected to pay dividends on the Series B Cumulative
Convertible Preferred Stock in cash, the Corporation fails to
authorize, declare and pay in cash on a Dividend Payment Date the full
amount of the cash dividend due at the Cash Dividend Rate, then, on or
prior to such Dividend Payment Date, the Board shall authorize, declare
and pay a supplemental stock dividend in shares of Series B Cumulative
Convertible Preferred Stock (valued at the Liquidation Preference)
equal to the difference between the dividend that would have been paid
in-kind at the In-Kind Dividend Rate (assuming that the Board had
elected to pay dividends for such period in-kind and assuming that a
Special Default existed) and the cash dividend actually declared and
paid on such Dividend Payment Date and on the previous Dividend Payment
Date during such Annual Payment Period, if any.
(ii) On or after December 15, 1999:
(1) On or prior to December 15, 1999 and on or prior to each
June 15 and December 15 thereafter, the Board of Directors shall
determine whether dividend payments accruing on the next two Dividend
Payment Dates beginning on such Dividend Payment Date (each a
"Semiannual Payment Period") shall be paid in (i) cash or (ii)
additional shares of Series B Cumulative Convertible Preferred Stock
valued at the Liquidation Preference (but not in any combination of
cash and additional shares of Series B Cumulative Convertible Preferred
Stock);
38
(2) in the event that, during a Semiannual Payment Period when
the Board has elected to pay dividends on the Series B Cumulative
Convertible Preferred Stock in cash, the Corporation fails to
authorize, declare and pay in cash on a Dividend Payment Date the full
amount of the cash dividend due at the Cash Dividend Rate, then, on
such Dividend Payment Date, the Board shall authorize, declare and pay
a supplemental stock dividend in shares of Series B Cumulative
Convertible Preferred Stock (valued at the Liquidation Preference)
equal to the difference between the dividend that would have been paid
in-kind at the In-Kind Dividend Rate (assuming that the Board had
elected to pay dividends for such period in-kind and assuming that a
Special Default existed) and the cash dividend actually declared and
paid on such Dividend Payment Date and on the previous Dividend Payment
Date during such Semiannual Payment Period, if any.
(iii) All shares of Series B Cumulative Convertible
Preferred Stock issued as a dividend with respect to
the Series B Cumulative Convertible Preferred Stock
shall thereupon be duly authorized, validly issued,
fully paid and nonassessable.
(c) In the case of shares of Series B Cumulative Convertible
Preferred Stock issued on the Original Issue Date, dividends shall accrue and be
cumulative from such date. In the case of shares of Series B Cumulative Con
vertible Preferred Stock issued as a dividend on shares of Series B Cumulative
Convertible Preferred Stock, dividends shall accrue and be cumulative from the
dividend payment date in respect of which such shares were (or should have been)
issued as a dividend.
(d) Each fractional share of Series B Cumulative Convertible
Preferred Stock outstanding shall be entitled to a ratably proportionate amount
of all dividends accruing with respect to each outstanding share of Series B
Cumulative Convertible Preferred Stock, and all such dividends with respect to
such outstanding fractional shares shall be cumulative and shall accrue (whether
or not declared), and shall be payable in the same manner and at such times as
provided for above with respect to dividends on each outstanding share of Series
B Cumulative Convertible Preferred Stock. Each fractional share of Series B
Cumulative Convertible Preferred Stock outstanding shall also be entitled to a
ratably proportionate amount of any other distributions made with respect to
each outstanding share of Series B Cumulative Convertible Preferred Stock, and
all such distributions shall be payable in the same manner and at the same time
as distributions on each outstanding share of Series B Cumulative Convertible
Preferred Stock.
(e) No dividends or other distributions shall be
authorized, declared, paid or set apart for payment on any shares of Common
Stock or
39
other stock of the Corporation ranking junior as to dividends to the Series B
Cumulative Convertible Preferred Stock (collectively, the "Junior Dividend
Stock") except for dividends or distributions that are not Extraordinary Equity
Payments (defined below in Section 8(h)).
(f) If at any time any dividend on the $21.25 Convertible
Exchangeable Preferred Stock (the "$21.25 Preferred Stock") or any other stock
of the Corporation hereafter issued ranking senior as to dividends to the Series
B Cumulative Convertible Preferred Stock (collectively with the $21.25 Preferred
Stock, the "Senior Dividend Stock") shall be in arrears, in whole or in part,
then (except to the extent allowed by the terms of such Senior Dividend Stock)
no cash dividend shall be authorized, declared, paid or set apart for payment on
the Series B Cumulative Convertible Preferred Stock unless and until all accrued
and unpaid dividends with respect to the Senior Dividend Stock for all payment
periods ending on or prior to the date of payment of the current dividend on the
Series B Cumulative Convertible Preferred Stock shall have been authorized,
declared and paid or set apart for payment. Dividends payable in additional
shares of Series B Cumulative Convertible Preferred Stock are permitted and not
subordinated in payment to payment of dividends on the Senior Dividend Stock.
(g) No dividends or other distributions shall be authorized,
declared, paid or set apart for payment on any class or series of the
Corporation's stock heretofore or hereafter issued ranking, as to dividends, on
a parity with the Series B Cumulative Convertible Preferred Stock (the "Parity
Dividend Stock") for any period unless full cumulative dividends have been, or
contemporaneously are, authorized, declared and paid or set apart in trust for
such payment on the Series B Cumulative Convertible Preferred Stock for all
dividend payment periods terminating on or prior to the date of payment of such
full cumulative dividends. No full dividends (other than dividends payable in
additional shares of Series B Cumulative Convertible Preferred Stock) shall be
authorized, declared, paid or set apart for payment on the Series B Cumulative
Convertible Preferred Stock for any period unless full cumulative dividends have
been, or contemporaneously are, authorized, declared and paid or set apart for
payment on the Parity Dividend Stock for all dividend periods terminating on or
prior to the date of payment of such full cumulative dividends. When accrued
dividends are not paid in full on the Series B Cumulative Convertible Preferred
Stock and the Parity Dividend Stock, all cash dividends authorized, declared and
paid or set apart for payment on the Series B Cumulative Convertible Preferred
Stock and the Parity Dividend Stock shall be authorized, declared, paid or set
apart for payment pro rata so that the amount of dividends authorized, declared,
paid or set apart for payment per share on the Series B Cumulative Convertible
Preferred Stock and the Parity Dividend Stock shall in all cases bear to each
other the same ratio that accrued and unpaid dividends per
40
share on the Series B Cumulative Convertible Preferred Stock and the Parity
Dividend Stock bear to each other.
4. Liquidation Preference.
(a) The liquidation preference of the Series B Cumulative
Convertible Preferred Stock shall be $200.00 per share (the "Liquidation
Preference"). Subject to the full payment of the liquidation preferences of the
$21.25 Preferred Stock and the shares of stock of the Corporation hereafter
issued ranking senior as to liquidation rights to the Series B Cumulative
Convertible Preferred Stock (the "Senior Liquidation Stock"), in the event of a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of Series B Cumulative Convertible Preferred
Stock shall be entitled to receive out of the assets of the Corporation, whether
such assets are stated capital or surplus of any nature, an amount equal to the
dividends accrued and unpaid on such shares on the date of final distribution to
such holders, whether or not declared, without interest, plus a sum equal to the
Liquidation Preference, and no more, before any payment shall be made or any
assets distributed to the holders of shares of Common Stock or any other class
or series of the Corporation's stock hereafter issued ranking junior as to
liquidation rights to the Series B Cumulative Convertible Preferred Stock
(collectively, the "Junior Liquidation Stock").
(b) The assets of the Corporation available for distribution
after the liquidation preferences of the Senior Liquidation Stock are fully met
shall be distributed ratably among the holders of the Series B Cumulative
Convertible Preferred Stock and any other class or series of the Corporation's
stock hereafter issued ranking on a parity as to liquidation rights with the
Series B Cumulative Convertible Preferred Stock in proportion to the respective
preferential amounts to which each is entitled (but only to the extent of such
preferential amounts); provided, however, that after payment in full of the
Liquidation Preferences, the holders of the shares of the Series B Cumulative
Convertible Preferred Stock shall not be entitled to any further participation
in any distribution of assets by the Corporation. Neither a consolidation or
merger of the Corporation with or into another corporation nor a merger of any
other corporation with or into the Corporation, nor a sale or transfer of all or
any part of the Corporation's assets for cash, securities or other property,
will be considered a liquidation, dissolution or winding up of the Corporation.
41
5. Limitation on Share Repurchase. If at any time any dividends on the
Series B Cumulative Convertible Preferred Stock shall be in arrears or the
Corporation shall have failed to make any purchase of shares of Series B
Cumulative Convertible Preferred Stock tendered to it pursuant to Section 7, the
Corporation shall not -- and the Corporation shall not permit any other
corporation or legal entity directly or indirectly controlled by the Corporation
(collectively, the "subsidiaries") to -- repurchase, redeem, retire or otherwise
acquire any shares of Junior Dividend Stock, Junior Liquidation Stock, or any
warrants, rights, calls or options exercisable for or convertible into any
shares of Junior Dividend Stock or Junior Liquidation Stock, except by
conversion into or exchange for shares of Junior Dividend Stock or Junior
Liquidation Stock and other than purchases, redemptions, retirements or
acquisitions made pursuant to and as required by the terms of any employee
incentive or benefit plan of the Corporation or any subsidiary of the
Corporation in effect on July 24, 1996 or as amended or adopted by the
Corporation with approval of the Executive Committee of the Corporation.
Notwithstanding the preceding sentence, any subsidiary which is wholly owned by
the Corporation may repurchase, redeem, retire or otherwise acquire shares of
its stock.
6. Redemption at Option of the Corporation.
(a) So long as shares of Common Stock shall have traded on the
Primary Exchange (defined below) (i) for at least forty (40) of the forty-five
(45) trading days (each of which trading days shall be after the third
anniversary of the Original Issue Date (the "Third Anniversary")) immediately
preceding the Determination Date (defined below), and (ii) on each of the ten
(10) consecutive trading days immediately prior to the Determination Date
(defined below), at a Closing Price (as hereinafter defined) in excess of the
Hurdle Percentage (defined below) of the conversion price then in effect for the
Series B Cumulative Convertible Preferred Stock for each such trading day, all,
but not less than all, of Series B Cumulative Convertible Preferred Stock may
thereafter be redeemed at the election of the Board of Directors made on any
date (the "Determination Date") on or after the Third Anniversary, for the
Redemption Price (defined below in Section 7(b)), plus an amount in cash equal
to accrued and unpaid dividends thereon, whether or not authorized or declared,
to but excluding the date fixed for redemption. For purposes of the
determination of the Board called for in the preceding sentence, the Designated
Directors (defined below in Section 13) shall not vote. The date on which such
shares shall be redeemed shall be a date that is at least ten (10), but no more
than thirty (30), business days after the Determination Date (during which
period the holders of the Series B Cumulative Convertible Preferred Stock may,
but shall not be required to, convert such stock into Common Stock). The Hurdle
Percentage shall be 150% from and after the Third Anniversary, and to the fifth
42
anniversary of the Original Issue Date; thereafter, the Hurdle Percentage shall
be 125%. "Primary Exchange" shall mean the American Stock Exchange or such other
principal national securities exchange or quotation system on which the Common
Stock of the Corporation is quoted or listed or admitted to trading.
(b) Not more than thirty (30) nor less than ten (10) business
days prior to the redemption date fixed by the Board of Directors, the
Corporation shall give notice by hand or overnight courier to the holders of
record of shares of the Series B Cumulative Convertible Preferred Stock to be
redeemed, addressed to such holders at their last addresses as shown upon the
stock transfer books of the Corporation. Each such notice of redemption shall
specify the date fixed for redemption; the Redemption Price (defined below in
Section 7(b)) plus an amount in cash equal to accrued and unpaid dividends
thereon, whether or not authorized or declared, to but excluding the date fixed
for redemption; the place or places of payment; that payment will be made upon
presentation and surrender of the shares of Series B Cumulative Convertible
Preferred Stock; that on and after the redemption date dividends will cease to
accrue on such shares; the then effective conversion price pursuant to Section
8; and that the right of holders to convert shares of Series B Cumulative
Convertible Preferred Stock shall terminate at the close of business on the
business day prior to the redemption date (unless the Corporation defaults in
the payment of the Redemption Price plus an amount in cash equal to accrued and
unpaid dividends thereon, whether or not authorized or declared, to but
excluding the date fixed for redemption).
(c) Any notice as herein provided shall be deemed to be given
when delivered to the address specified in the preceding section. On or after
the date fixed for redemption as stated in such notice, each holder of the
shares called for redemption, unless such holder has exercised such holder's
right to convert shares of Series B Cumulative Convertible Preferred Stock as
provided above, shall surrender the certificate representing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the Redemption Price (defined below in Section
7(b)) plus an amount in cash equal to accrued and unpaid dividends thereon,
whether or not authorized or declared, to but excluding the date fixed for
redemption. If less than all the shares evidenced by any such surrendered
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares. Notice having been given as aforesaid, if, on the date fixed
for redemption, funds necessary for the redemption shall be available therefor
and shall have been irrevocably deposited or set aside in trust for the holders
of the shares of Series B Cumulative Convertible Preferred Stock, then,
notwithstanding that the certificates representing any shares so called for
redemption shall not have been surrendered, dividends with respect to the
43
shares so called shall cease to accrue after the date fixed for redemption, such
shares shall no longer be deemed outstanding, the holders thereof shall cease to
be stockholders of the Corporation and all rights whatsoever with respect to the
shares so called for redemption (except the right of the holders to receive the
Redemption Price plus an amount in cash equal to accrued and unpaid dividends
thereon, whether or not authorized or declared, to but excluding the date fixed
for redemption, without interest upon surrender of their certificates therefor)
shall terminate. If funds legally available for such purpose are not sufficient
for redemption of the shares of Series B Cumulative Convertible Preferred Stock
to be redeemed, then the certificates representing such shares shall be deemed
not to be surrendered, such shares shall remain outstanding and the rights of
holders of shares of Series B Cumulative Convertible Preferred Stock thereafter
shall continue to be only those of a holder of shares of the Series B Cumulative
Convertible Preferred Stock.
(d) Except as provided in Section 7, the shares of Series B
Cumulative Convertible Preferred Stock shall not be subject to the operation of
any mandatory purchase, retirement or sinking fund.
7. Mandatory Repurchase and Repurchase at Option of the Holder.
(a) On the eighth anniversary of the Original Issue Date, the
Corporation shall purchase from each holder of shares of Series B Cumulative
Convertible Preferred Stock one-third of the number of shares of the Series B
Cumulative Convertible Preferred Shares held by such holder on such eighth
anniversary. On the ninth anniversary of the Original Issue Date, the
Corporation shall purchase from each holder of shares of Series B Cumulative
Convertible Preferred Stock one-half of the number of shares of the Series B
Cumulative Convertible Preferred Shares held by such holder on such ninth
anniversary. On the tenth anniversary of the Original Issue Date, the
Corporation shall purchase from each holder of shares of Series B Cumulative
Convertible Preferred Stock the number of shares of the Series B Cumulative
Convertible Preferred Shares held by such holder on such tenth anniversary.
Repurchases made pursuant to this Section 7(a) shall be effected on such
anniversary date (or such other day as the holder and the Corporation may agree)
and shall be for the Redemption Price (defined below in Section 7(b)) plus an
amount in cash equal to the accrued and unpaid dividends thereon, whether or not
authorized or declared, to but excluding the date fixed for repurchase. Any
shares of Series B Cumulative Convertible Preferred Stock which would have
accrued but have not been paid on any shares tendered for purchase shall be
deemed to be tendered for purchase.
(b) (i) If one or more Special Defaults shall occur
at any time or from time to time on or after the Original Issue Date, each
holder of
44
shares of the Series B Cumulative Convertible Preferred Stock shall have the
right, at such holder's option exercisable at any time within 120 days after the
happening of each such Special Default, to require the Corporation to purchase
all or any part of the shares of Series B Cumulative Convertible Preferred Stock
then held by such holder as such holder may elect at the Redemption Price
(defined below) plus, in each case, an amount in cash equal to the accrued and
unpaid dividends thereon, whether or not authorized or declared, to but
excluding the date fixed for redemption. Any shares of Series B Cumulative
Convertible Preferred Stock which would have accrued but have not been paid on
any shares tendered for purchase shall be deemed to be tendered for purchase.
The "Redemption Price" shall be the Liquidation Preference where there have been
no Special Defaults, and -- after there has been one or more Special Defaults --
shall be 130% of the greater of the Liquidation Preference or the market value
of the Common Stock (valued at the average of the Closing Prices on the
preceding twenty (20) trading days immediately prior to the occurrence of the
Special Default) into which the Series B Cumulative Convertible Preferred Stock
would then be convertible assuming such shares to be immediately convertible
(whether or not such shares were then actually convertible);
(ii) A "Special Default" shall mean any of the
following events which occur after the Original Issuance Date and while any
shares of the Series B Cumulative Convertible Preferred Stock are outstanding:
(1) the disbanding or other restructuring, reorganization, or
reconstitution (including without limitation change in the number of
members) of the Executive Committee of the Board without the prior
written approval of a majority of the members of the Executive
Committee who were members prior to such change (and, for so long as
the holders of the Series B Cumulative Convertible Preferred Stock
shall have the right to designate more than one director to the
Executive Committee pursuant to Section 13(b) below, including the
members so designated by the holders of the Series B Cumulative
Convertible Preferred Stock);
(2) the taking of any of the following actions by the
Corporation or the Board without the approval of a majority of the
members of the Executive Committee of the Board (whether or not such
action was taken by the Board in view of its fiduciary duties pursuant
to the last sentence of Section 3.3(A) of the By-Laws of the
Corporation, as amended): (A) any borrowing or guarantee by the
Corporation exceeding $15 million, (B) except for issuance of stock or
stock options pursuant to the Corporation's incentive compensation
plans or programs, any issuance of stock (whether common or preferred,
whether voting or non-voting, whether junior, pari passu, or senior to
the Series B Cumulative Convertible Preferred Stock) other than
45
Common Stock of the Corporation in an aggregate amount not
exceeding five percent (5%) of the Common Stock of the Corporation
issued and outstanding on the Original Issue Date, (C) any strategic
alliance (other than a construction joint venture) involving a capital
commitment by the Corporation exceeding $5 million, (D) any asset sale
by the Corporation or lease as lessor exceeding $5 million (other than
equipment dispositions in the normal course of business); (E) any
redemption or amendment of the Rights (defined below) or the preferred
stock of the Corporation issuable upon the exercise of such Rights, or
any amendment of the Rights Agreement (defined below), and (F) any
termination of (other than a termination upon expiration) or amendment
to the management agreement among the Corporation, Ronald Tutor and
Tutor-Saliba Corporation; provided, however, that for purposes of this
Section 8(b)(ii)(2), approval of the Executive Committee shall not be
required for any decision by the Board of Directors to redeem the
Series B Cumulative Convertible Preferred Stock pursuant to Section
6(a);
(3) any change by the Corporation in the composition of the
Executive Committee of the Board which results in members of such
Committee selected by the holders of the Series B Cumulative
Convertible Preferred Stock pursuant to Section 13(b) below being fewer
than the number of directors that the holders of the Series B
Cumulative Convertible Preferred Stock are then entitled to designate
pursuant to that provision or the failure of the Corporation to
nominate for director the persons designated by the holders of the
Series B Cumulative Convertible Preferred Stock in accordance with
Section 13(a) below; or
(4) solely for purposes of the right to elect additional
directors pursuant to Section 9(b) and not for purposes of any other
Section, the failure of the Corporation to authorize, declare, and pay
dividends payable in Series B Cumulative Convertible Preferred Stock
when due in accordance with Section 3.
(c) The date fixed for each such repurchase shall be (x) the
anniversary of the Original Issue Date immediately succeeding the notice given
pursuant to Section 7(a), or (y) the 121st day following the occurrence of the
Special Default giving rise to a repurchase pursuant to Section 7(b). The place
of payment shall be at an office or agency in Boston, Massachusetts fixed
therefor by the Corporation or, if not fixed, at the principal executive office
of the Corporation.
(d) The Corporation shall, within 20 days of the occurrence of
a Special Default, give a written notice thereof by registered or certified
mail, postage prepaid, return receipt requested, to the holders of record of
shares of the Series B Cumulative Convertible Preferred Stock, addressed to
46
such holders at their last addresses as shown upon the stock transfer books of
the Corporation. Each such notice shall specify the Special Default which has
occurred and the date of such occurrence, the place or places of payment, the
then effective conversion price pursuant to Section 8, the then effective
repurchase price and the date the right of such holder to require such
repurchase shall terminate. Any notice that is mailed as herein provided shall
be conclusively presumed to have been duly given, whether or not the holder of
shares of Series B Cumulative Convertible Preferred Stock receives such notice;
and failure to give such notice by mail, or any defect in such notice, to the
holders of any shares shall not affect the validity of the proceedings for the
repurchase of any other shares of Series B Cumulative Convertible Preferred
Stock.
(e) (i) On the date fixed for any such repurchase, each holder
of shares of Series B Cumulative Convertible Preferred Stock who elects to have
shares of Series B Cumulative Convertible Preferred Stock held by it purchased
shall surrender the certificate representing such shares to the Corporation at
the place designated in such notice together with an election to have such
purchase made and shall thereupon be entitled to receive payment therefor
provided in this Section 7. If less than all the shares represented by any such
surrendered certificate are repurchased, a new certificate shall be issued
representing the unpurchased shares. Dividends with respect to the shares of
Series B Cumulative Convertible Preferred Stock so purchased shall cease to
accrue after the date so purchased, such shares shall no longer be deemed
outstanding after such date and the holders thereof shall cease to be
stockholders of the Corporation and all rights whatsoever with respect to the
shares so purchased shall terminate.
(ii) If the funds legally available for such purchase are not
sufficient to purchase all the shares of Series B Cumulative Convertible
Preferred Stock tendered to the Corporation for purchase, the Corporation shall
purchase the greatest number of whole shares for which such funds are so
available on a pro rata basis among all tendering holders based on the ratio of
the number of shares tendered by each of them to the aggregate amount of all
shares so tendered, and the certificates representing the unpurchased shares
shall be deemed not to be surrendered for repurchase, such unpurchased shares
shall remain outstanding and the rights of the holders of shares of Series B
Cumulative Convertible Preferred Stock thereafter shall continue to be those of
a holder of shares of the Series B Cumulative Convertible Preferred Stock;
provided, however, the Corporation shall thereafter be required to repurchase
all such remaining shares at the first date it has sufficient funds legally
available for such purpose at the price it would have paid at the date such
shares were actually tendered and the Corporation shall give notice as aforesaid
to each holder whose shares were not repurchased for such reason and such holder
shall
47
thereafter have the right to elect to have such shares repurchased, such
election to be made within 30 days of receipt of such notice. For purposes of
this Section, the Corporation shall be deemed not to have sufficient funds
legally available for any such purchase if the Board of Directors reasonably
determines that immediately after such repurchase the Corporation would be
insolvent.
(iii) For so long as there remain shares of Series
B Cumulative Convertible Preferred Stock that have been surrendered for
repurchase in accordance with this Section 7 that have not been so repurchased
by the Corporation:(1) the number of members of the Board of Directors shall be
increased by such number as is necessary to allow the election of the directors
specified in clause (2) of this Section, and (2) the holders of the Series B
Cumulative Convertible Preferred Stock, voting separately as a class, shall have
the right to elect an additional number of directors to the Board of Directors
such that the Designated Directors (defined below in Section 13) who are serving
on the Board of Directors, plus the directors elected by such holders voting as
a class under this clause, constitute a majority of Board. The right of the
holders of the Series B Cumulative Convertible Preferred Stock to vote for such
additional directors shall terminate when shares of the Series B Cumulative
Convertible Preferred Stock properly tendered for repurchase pursuant to this
Section 7 have been repurchased. The term of office of all directors so elected
shall terminate immediately upon the termination of the right of the holders of
the Series B Cumulative Convertible Preferred Stock to vote for such additional
directors, and the number of directors of the Board of Directors shall
immediately thereafter be reduced.
(iv) The foregoing right of the holders of the
Series B Cumulative Convertible Preferred Stock with respect to the election of
additional directors may be exercised at each annual meeting of stockholders or
at any special meeting of stockholders held for such purpose. If the right to
elect additional directors shall have accrued to the holders of the Series B
Cumulative Convertible Preferred Stock more than thirty (30) days preceding the
date established for the next annual meeting of stockholders, the President of
the Corporation shall, within five (5) days after the delivery to the
Corporation at its principal office of a written request for a special meeting
signed by the holders of at least 10% of all outstanding shares of the Series B
Cumulative Convertible Preferred Stock, call a special meeting of the holders of
the Series B Cumulative Convertible Preferred Stock to be held as promptly as
practicable after the delivery of such request for the purpose of electing such
additional directors.
(v) The holders of the Series B Cumulative
Convertible Preferred Stock voting as a class shall have the right to remove
with or without cause at any time and replace any directors such holders shall
48
have elected pursuant to this Section 7 and the holders of each other class of
stock of the Corporation shall not have the right to remove any such directors.
8. Conversion.
(a) Right of Conversion. Each share of Series B Cumulative
Convertible Preferred Stock, whether issued originally or in-kind as a dividend
payment, shall be convertible at the option of the holder thereof, at any time
(provided, however, that where the Corporation has elected to redeem such stock,
the option of the holder described in this section must be exercised prior to
the close of business on the business day prior to the date fixed for redemption
of such share as herein provided), into fully paid and nonassessable shares of
Common Stock and such other securities and property as hereinafter provided, at
the rate of that number of shares of Common Stock for each full share of Series
B Cumulative Convertible Preferred Stock that is equal to the Liquidation
Preference plus an amount in cash equal to the accrued and unpaid dividends
thereon, whether or not authorized or declared, divided by the conversion price
applicable per share of Common Stock. For purposes of this Section 8(a), the
"conversion price" applicable per share of Common Stock shall initially be equal
to Nine Dollars and Sixty-Eight and Two-Hundred Nineteen One-Thousandths Cents
($9.68219), and shall be adjusted from time to time to the nearest
one-thousandth of a cent after the Original Issue Date in accordance with the
provisions of this Section 8.
(b) Conversion Procedures.
(i) Any holder of shares of Series B Cumulative
Convertible Preferred Stock desiring to convert such shares into Common Stock
shall surrender the certificate or certificates representing such shares of
Series B Cumulative Convertible Preferred Stock at the office of the transfer
agent for the Series B Cumulative Convertible Preferred Stock, which certificate
or certificates, if the Corporation shall so require, shall be duly endorsed to
the Corporation or in blank, or accompanied by proper instruments of transfer to
the Corporation or in blank, accompanied by irrevocable written notice to the
Corporation that the holder elects so to convert such shares of Series B
Cumulative Convertible Preferred Stock and specifying the name or names (with
address or addresses) in which a certificate or certificates evidencing shares
of Common Stock are to be issued.
(ii) Subject to Section 8(k) hereof, no payments or
adjustments in respect of dividends on shares of Series B Cumulative Convertible
Preferred Stock surrendered for conversion or on account of any dividend on the
Common Stock issued upon conversion shall be made upon the conversion of any
shares of Series B Cumulative Convertible Preferred Stock.
49
(iii) The Corporation shall, as soon as practicable after
such deposit of certificates representing shares of Series B Cumulative
Convertible Preferred Stock accompanied by the written notice and compliance
with any other conditions herein contained, deliver at such office of the
transfer agent to the person for whose account such shares of Series B
Cumulative Convertible Preferred Stock were so surrendered or to the nominee or
nominees of such person certificates representing the number of full shares of
Common Stock to which such person shall be entitled as aforesaid, together with
a cash adjustment in respect of any fraction of a share of Common Stock as
hereinafter provided. Subject to the following provisions of this paragraph,
such conversion shall be deemed to have been made as of the date of such
surrender of the shares of Series B Cumulative Convertible Preferred Stock to be
converted, and the person or persons entitled to receive the Common Stock
deliverable upon conversion of such Series B Cumulative Convertible Preferred
Stock shall be treated for all purposes as the record holder or holders of such
Common Stock on such date.
(c) Adjustment of Conversion Price. The conversion price at
which a share of Series B Cumulative Convertible Preferred Stock is convertible
into Common Stock shall be subject to adjustment from time to time as follows:
(i) (1) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock exclusively in Common Stock
or shall pay or make a dividend or other distribution on any other class of
stock of the Corporation which dividend or distribution includes Common Stock or
shall exchange outstanding Rights (as defined in Section 8(j) hereof) for shares
of Common Stock, the conversion price in effect at the opening of business on
the day following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution or to exchange such Rights shall
be reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares constituting
such dividend or other distribution or exchange, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination.
(2) In case the Corporation shall issue or
otherwise sell or distribute shares of Common Stock for a consideration per
share in cash or property less than the most recent Closing Price prior to the
time of such issuance (and, if shares are issued, sold, or distributed pursuant
to the exercise or conversion of options, warrants, convertible securities, or
other rights, the exercise or conversion price thereof when such options,
warrants,
50
convertible securities, or rights were granted or issued was less than the
Closing Price (defined below in Section 8(h) at the time of issuance of such
options, warrants, convertible securities, or other rights), the conversion
price then in effect shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately prior to such issuance, sale or distribution plus the
number of shares of Common Stock which the aggregate consideration received by
the Corporation for such issuance, sale or distribution (such consideration, if
other than cash, as determined by the Board of Directors, whose determination
shall be conclusive and described in a vote of the Board of Directors) would
purchase at the current market price per share and the denominator shall be the
number of shares of Common Stock outstanding immediately after giving effecting
to such issuance, sale or distribution.
(ii) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock consisting exclusively of, or
shall otherwise issue to all or substantially all holders of its Common Stock,
rights or warrants entitling the holders thereof to subscribe for or purchase
shares of Common Stock at a price per share less than the then current market
price per share (determined as provided in subparagraph (vii) of this Section
8(c)) of the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the conversion price
in effect at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination. In case any rights or warrants referred to in
this subparagraph (ii) in respect of which an adjustment shall have been made
shall expire unexercised, the conversion price shall be readjusted at the time
of such expiration to the conversion price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants. For the purposes of this Section 8(c)(ii), if both a
Distribution Date and a Section 11(a)(ii) Event (as such terms are defined in
the Rights Agreement by and between the Corporation and the First National Bank
at Boston, dated as of September 23, 1988, as amended (the "Rights Agreement"))
shall have occurred, then the later to occur of such events shall
51
be deemed to constitute an issuance of rights to purchase shares of Common
Stock.
(iii) In case outstanding shares of Common Stock shall
be subdivided into a greater number of shares of Common Stock, the conversion
price in effect at the opening of business on the day following the day upon
which such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such reduction
or increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(iv) (1) In case the Corporation shall, by dividend
or otherwise, make a Section 8(c)(iv) Distribution (defined below in Section
8(h)) to all or substantially all holders of its Common Stock, the conversion
price shall be reduced so that the same shall equal the price determined by
multiplying the conversion price in effect immediately following the close of
business on the Determination Date (as defined in Section 8(h)) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the
Determination Date less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors), on the date of such effectiveness, of the portion of
the Section 8(c)(iv) Distribution so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per share of
the Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the Determination Date. If the Board of
Directors so determines as aforesaid the fair market value of any distribution
for purposes of this subparagraph (iv) by reference to the actual or when-issued
trading market for any securities comprising such distribution, it must in doing
so consider the prices in such market over the same period used in computing the
current market price per share of Common Stock pursuant to subparagraph (vii) of
this Section 8(c).
(2) Notwithstanding the foregoing, if the
Corporation elects to reserve, for distribution to the holders of the Series B
Cumulative Convertible Preferred Stock upon the conversion of the shares of
Series B Cumulative Convertible Preferred Stock, the evidences of the
Corporation's indebtedness, shares of any class of stock, or assets that would
have been distributed to the holders of the Series B Cumulative Convertible
Preferred Stock if they had converted their shares into shares of Common Stock
52
so that any such holder converting shares of Series B Cumulative Convertible
Preferred Stock will receive upon such conversion, in addition to the shares of
the Common Stock to which such holder is entitled, the amount and kind of such
evidences of the Corporation's indebtedness, shares of any class of stock, or
assets which such holder would have received if such holder had, immediately
prior to the Determination Date for such distribution of securities, converted
its shares of Series B Cumulative Convertible Preferred Stock into Common Stock,
the fair market value of the securities shall, for purposes of this subparagraph
(iv), be deemed to be zero.
(v) Subject to the last sentence of this subparagraph
(v), in case the Corporation shall, by dividend or otherwise, at any time
distribute to all holders of its Common Stock cash (excluding any cash
representing an amount per share of capital stock of the Corporation to the
extent such cash does not constitute an Extraordinary Equity Payment), the
conversion price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this
subparagraph (v) by a fraction of which the numerator shall be the current
market price per share (determined as provided in subparagraph (vii) of this
Section 8(c)) of the Common Stock on the Determination Date less the amount of
cash so distributed and not excluded as above provided applicable to one share
of Common Stock and the denominator shall be such current market price per share
of the Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the Determination Date. Notwithstanding
the foregoing, if the Corporation elects to reserve the cash to be distributed
for distribution to the holders of the Series B Cumulative Convertible Preferred
Stock upon the conversion of the shares of Series B Cumulative Convertible
Preferred Stock so that any such holder converting shares of Series B Cumulative
Convertible Preferred Stock will receive upon such conversion, in addition to
the shares of the Common Stock to which such holder is entitled, the amount of
cash which such holder would have received if such holder had, immediately prior
to the Determination Date for such distribution of cash, converted its shares of
Series B Cumulative Convertible Preferred Stock into Common Stock, then the
conversion price shall not be so reduced.
(vi) In case a tender or exchange offer made by the
Corporation or any subsidiary of the Corporation for all or any portion of the
Corporation's Common Stock shall expire and such tender or exchange offer shall
involve the payment by the Corporation or such subsidiary of consideration per
share of Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors) at the last time (the
53
"Expiration Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds the current market
price per share (determined as provided in subparagraph (vii) of this Section
8(c)) of the Common Stock on the Trading Day next succeeding the Expiration
Time, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately prior
to the Expiration Time by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any tendered or exchanged
shares) on the Expiration Time multiplied by the current market price per share
(determined as provided in subparagraph (vii) of this Section 8(c)) of the
Common Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the current market price per share (determined as provided in
subparagraph (vii) of this Section 8(c)) of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the Expiration
Time.
(vii) For purposes of any computation under this
section, the current market price per share of Common Stock on any date shall be
deemed to be the volume-weighted average trading price of the Common Stock for
the five-day period before the earlier of the day in question and the "ex" date
with respect to any issuance or distribution requiring such computation;
provided, however, that for purposes of clause (3) of this paragraph, the
current market price per share shall be deemed to be the volume- weighted
average trading price of the Common Stock for the five-day period after the "ex
date." For purposes of this subparagraph (vii), the term "ex" date, (1) when
used with respect to any issuance or distribution, means the first date on which
the Common Stock trades regular way on the relevant exchange or in the relevant
market from which the Closing Price was obtained without the right to receive
such issuance or distribution, (2) when used with respect to any subdivision or
combination of shares of Common Stock, means the first date on which the Common
Stock trades regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer, means the first date on which the
Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer.
54
(viii) The Corporation may make such reductions in the
conversion price, in addition to those required by subparagraphs (i), (ii),
(iii), (iv), (v) and (vi) of this Section 8(c), as it considers to be advisable
to avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for income tax
purposes.
(ix) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the conversion price; provided, however, that any adjustments which
by reason of this subparagraph (ix) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(x) Notwithstanding any other provision of this
Section 8 and without implication that the contrary would otherwise be true, no
issuance, dividend or distribution requiring adjustment of the conversion price
pursuant to Section 8(c) hereof shall be deemed to have occurred in the event
that, upon, following or in connection with the redemption or expiration of the
Rights or the termination of the Rights Agreement or otherwise, the Corporation
enters into a new agreement that is comparable in purpose and effect to the
Rights Agreement (as determined by the Board of Directors, whose determination
shall be conclusive) and distributes rights to purchase Preferred Stock (or
other similar stock purchase rights under such agreement that are attached to
the Common Stock) to the holders of Common Stock.
(xi) Whenever the conversion price is adjusted as
herein provided:
(1) the Corporation shall compute the adjusted conversion
price and shall prepare a certificate signed by the
Treasurer of the Corporation setting forth the
adjusted conversion price and showing in reasonable
detail the acts upon which such adjustment is based,
and such certificate shall forthwith be filed with
the transfer agent for the Series B Cumulative
Convertible Preferred Stock; and
(2) a notice stating the conversion price has been
adjusted and setting forth the adjusted conversion
price shall forthwith be required, and as soon as
practicable after it is required, such notice shall
be mailed by the Corporation to all record holders of
shares of Series B Cumulative Convertible Preferred
Stock at their last addresses as they shall appear
upon the stock transfer books of the Corporation.
(d) No Fractional Shares. No fractional shares or scrip
representing fractional shares of Common Stock shall be issued upon conversion
55
of Series B Cumulative Convertible Preferred Stock. If more than one certificate
representing shares of Series B Cumulative Convertible Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of Series B Cumulative Convertible Preferred Stock so
surrendered. Instead of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any shares of Series B Cumulative
Convertible Preferred Stock, the Corporation shall pay a cash adjustment in
respect of such fractional interest in an amount equal to the same fraction of
the market price per share of Common Stock (as determined by the Board of
Directors or in any manner prescribed by the Board of Directors, which, so long
as the Common Stock is listed on the Primary Exchange, shall be the reported
last sale price regular way on the Primary Exchange) at the close of business on
the day of conversion.
(e) Reclassification, Consolidation, Merger, or Sale of
Assets. If any capital reorganization or reclassification of the capital stock
of the Corporation, or consolidation or merger of the Corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities, cash or other property with respect to
or in exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby the holders of the Series B Cumulative Convertible
Preferred Stock shall have the right to acquire and receive upon conversion of
the Series B Cumulative Convertible Preferred Stock, which right shall be pari
passu with the rights of holders of Parity Dividend Stock and senior to the
rights of the holders of Junior Dividend Stock and Junior Liquidation Stock (but
after and subject to the rights of holders of Senior Dividend Stock and Senior
Liquidation Stock, if any), such shares of stock, securities, cash or other
property issuable or payable (as part of the reorganization, reclassification,
consolidation, merger or sale) with respect to or in exchange for such number of
outstanding shares of Common Stock as would have been received upon conversion
of the Series B Cumulative Convertible Preferred Stock at the conversion price
then in effect, whether or not such stock is then convertible. The Corporation
will not effect any such consolidation, merger or sale, unless prior to the
consummation thereof the successor corporation (if other than the Corporation)
resulting from such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument in reasonable and customary form
mailed or delivered to the holders of the Series B Cumulative Convertible
Preferred Stock at the last address of each such holder appearing on the books
of the Corporation, the obligation to deliver to each such holder such shares of
stock, securities or assets as, in accordance with the foregoing provisions,
such holder may be entitled to purchase.
56
(f) Reservation of Shares; Transfer Taxes; Etc.
(i) The Corporation shall at all times reserve and keep
available, out of its authorized and unissued stock,
solely for the purpose of effecting the conversion of
the Series B Cumulative Convertible Preferred Stock,
such number of shares of its Common Stock or Common
Stock free of preemptive rights as shall from time to
time be sufficient to effect the conversion of all
shares of Series B Cumulative Convertible Preferred
Stock from time to time outstanding. The Corporation
shall from time to time, in accordance with the laws
of the State of Massachusetts, increase the number of
authorized shares of Common Stock if at any time the
number of shares of authorized and unissued Common
Stock shall not be sufficient to permit the
conversion of all the then outstanding shares of
Series B Cumulative Convertible Preferred Stock.
(ii) If any shares of Common Stock required to be reserved
for purposes of conversion of the Series B Cumulative
Convertible Preferred Stock hereunder require
registration with or approval of any governmental
authority under any Federal or State law before such
shares may be issued upon conversion, the Corporation
will in good faith and as expeditiously as possible
endeavor to cause such shares to be duly registered
or approved, as the case may be. If the Common Stock
is listed on the American Stock Exchange or any other
national securities exchange or national quotation
service, the Corporation will list and keep listed on
such exchange, upon official notice of issuance, all
shares of Common Stock issuable upon conversion of
the shares of Series B Cumulative Convertible
Preferred Stock.
(iii) The Corporation shall pay any and all issue or other
taxes that may be payable in respect of any issue or
delivery of shares of Common Stock on conversion of
the Series B Cumulative Convertible Preferred Stock.
The Corporation shall not, however, be required to
pay any tax which may be payable in respect of any
transfer involved in the issue or delivery of Common
Stock (or other securities or assets) in a name other
than that in which the shares of Series B Cumulative
Convertible Preferred Stock so converted were
registered, and no such issue or delivery shall be
made unless and until the person requesting such
issue has paid to the Corporation the amount of such
tax or has established, to the satisfaction of the
Corporation, that such tax has been paid.
57
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall declare or authorize a
redemption or repurchase of in excess of five percent
of the then outstanding shares of Common Stock; or
(ii) the Corporation shall authorize the granting to all
holders of Common Stock of rights or warrants to
subscribe for or purchase any shares of stock of any
class or of any other rights or warrants (other than
pursuant to the Rights Agreement or, following the
redemption or expiration of the Rights or the
termination of the Rights Agreement, any new
shareholder rights agreement that is comparable in
purpose and effect to the Rights Agreement); or
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common
Stock, or a change in par value, or from par value to
no par value, or from no par value to par value), or
of any consolidation or merger to which the
Corporation is a party and for which approval of any
stockholders of the Corporation shall be required, or
of the sale or transfer of all or substantially all
of the assets of the Corporation or of any compulsory
share exchange whereby the Common Stock is converted
into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent for the
Series B Cumulative Convertible Preferred Stock, and shall cause to be mailed to
the holders of record of the Series B Cumulative Convertible Preferred Stock, at
their last addresses as they shall appear upon the stock transfer books of the
Corporation, at least fifteen days prior to the applicable record date
hereinafter specified, a notice stating, as the case may be, (x) the record date
(if any) for the purpose of such dividend, distribution, redemption, repurchase
or granting of rights or warrants or, if no record date is to be set, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, redemption, rights or warrants are to be determined or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up is expected to
become effective, and the date, if any, as of which it is expected that holders
of shares of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the
58
mailing thereof shall affect the validity of the corporate action required to be
specified in such notice).
(h) Definitions. The following definitions shall apply to
terms used in this Section 8:
(i) "Closing Price" on any day shall mean the closing
sale price regular way on such day or, in case no
such sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in
each case on the Primary Exchange, or, if not quoted
or listed or admitted to trading on any national
securities exchange or quotation system, the average
of the closing bid and asked prices of the Common
Stock on the over-the-counter market on the day in
question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted
reporting service, or if not so available in such
manner, as furnished by any American Stock Exchange
member firm selected from time to time by the Board
of Directors of the Corporation for that purpose.
(ii) "Determination Date" shall mean, with respect to any
dividend, distribution or other transaction or event
in which the holders of Common Stock have the right
to receive any cash, securities or other property or
assets or in which the Common Stock (or other
applicable security) is exchanged for or converted
into any combination of cash, securities or other
property, the date fixed for determination of
stockholders entitled to receive such cash,
securities or other property or assets (whether such
date is fixed by the Board of Directors or by
statute, contract or otherwise).
(iii) "Extraordinary Equity Payment" shall mean:
(1) the declaration or payment on or after the
Original Issue Date by the Corporation, or
any of its subsidiaries of any dividend or
distribution on any class or series of its
stock other than:
(A) any dividend or distribution from one
subsidiary of the Corporation to a wholly-owned
subsidiary of the Corporation or from a subsidiary of
the Corporation to the Corporation; provided that all
of such dividend paid or distribution made, net of
applicable withholding taxes, is received by the
Corporation, or such recipient subsidiary;
(B) any regularly scheduled (whether or not
overdue) periodic cash dividend on the $21.25
Preferred Stock and Series B Cumulative Convertible
Preferred Stock in accordance with the terms thereof
as in effect on the Original Issue Date;
59
(C) any cash dividends on the Common Stock
or other capital stock after September 1, 2001 that
do not exceed in aggregate more than twenty-five
percent (25%) of the Corporation's consolidated net
income available for distribution to common
shareholders (after preferred dividends); provided,
however, that the Corporation shall have elected, for
the preceding four fiscal quarters, to pay cash
dividends on the Series B Cumulative Convertible
Preferred Stock and shall have paid in full such
dividends in cash when due;
(2) any repurchases, redemptions, retirements or
other acquisitions directly or indirectly by
the Corporation or any of its subsidiaries
on or after the Original Issue Date of any
stock of the Corporation or any of its
subsidiaries (other than a wholly-owned
subsidiary) (other than redemptions or
repurchases of the Series B Cumulative
Convertible Preferred Stock in accordance
with Sections 6 and 7).
(iv) "Fundamental Change" shall mean the occurrence of any
transaction or event in connection with a plan or agreement to which,
in either case, the Corporation is a party pursuant to which all or
substantially all of the shares of Common Stock shall be exchanged for,
converted into, acquired for or constitute solely the right to receive
cash, securities, property or other assets (whether by means of an
exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise);
provided, however, in the case of a plan involving more than one such
transaction or event, for purposes of adjustment of the conversion
price, such Fundamental Change shall be deemed to have occurred when
substantially all of the shares of Common Stock of the Corporation
shall be exchanged for, converted into or acquired for or constitute
solely the right to receive cash, securities, property or other assets,
but the adjustment shall be based upon the consideration which the
holders of Common Stock received in such transaction or event as a
result of which more than 50% of the shares of Common Stock of the
Corporation shall have been exchanged for, converted into, or acquired
for or constitute solely the right to receive cash, securities,
property or other assets; provided, further, that such term does not
include (i) any such transaction or event in which the Corporation
and/or any of its subsidiaries are the issuers of all the cash,
securities, property or other assets exchanged, acquired or otherwise
issued in such transaction or event, or (ii) any such transaction or
event in which the holders of Common Stock receive securities of an
issuer other than the Corporation if, immediately following such
transaction or event, such holders hold a majority of the securities
having the power to vote normally in the election of directors of such
other issuer outstanding immediately following such transaction or
other event.
60
(v) "Section 8(c)(iv) Distribution" shall mean
evidences of the Corporation's indebtedness, shares of any class of stock, or
assets, including securities, but excluding any rights or warrants referred to
in subparagraph (ii) of Section 8(c), excluding any dividend or distribution
paid in cash, and excluding any dividend or distribution referred to in
subparagraph (i) of Section 8(c).
(vi) "Trading Day" shall mean a day on which the
national securities exchange or the NASDAQ National Market System used to
determine the Closing Price is open for the transaction of business or the
reporting of trades.
(i) Dividend or Interest Reinvestment Plans. Notwithstanding
the foregoing provisions, the issuance of any shares of Common Stock pursuant to
any plan providing for the reinvestment of dividends or interest payable on
securities of the Corporation and the investment of additional optional amounts
in shares of Common Stock under any such plan, and the issuance of any shares of
Common Stock or options or rights to purchase such shares pursuant to any
employee benefit plan or program of the Corporation or pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security issued or
outstanding on the Original Issue Date (except as expressly provided in Section
8(c)(i) or 8(c)(ii) with respect to certain events under the Rights Agreement),
and any issuance of Rights (defined below) or other rights referred to in
Section 8(c)(x), shall not be deemed to constitute an issuance of Common Stock,
options, warrants, rights, or exercisable, exchangeable or convertible
securities by the Corporation or any of its subsidiaries to which any of the
adjustment provisions described above in this Section 8 applies. There shall
also be no adjustment of the conversion price in case of the issuance of any
stock (or options, warrants, rights, or securities convertible into or
exchangeable or exercisable for stock) of the Corporation except as specifically
described in this Section 8. If any action would require adjustment of the
conversion price pursuant to more than one of the provisions described above,
only one adjustment shall be made and such adjustment shall be the amount of
adjustment which has the highest absolute value to the holders of Series B
Cumulative Convertible Preferred Stock.
(j) Preferred Share Purchase Rights. So long as Preferred
Share Purchase Rights, of the kind authorized and declared on September 23, 1988
and distributed by the Corporation in September 1988 as the same have been and
may hereafter be amended ("Rights"), are attached to the outstanding shares of
Common Stock of the Corporation, each share of Common Stock issued upon
conversion of the shares of Series B Cumulative Convertible Preferred Stock
prior to the earliest of any Distribution Date (as defined in the Rights
Agreement), the date of redemption of the Rights or the date of
61
expiration of the Rights shall be issued with Rights in an amount equal to the
amount of Rights then attached to each such outstanding share of Common Stock.
(k) Certain Additional Rights. In case the Corporation shall,
by dividend or otherwise, authorize, declare or make a distribution on its
Common Stock referred to in Section 8(c)(iv) or Section 8(c)(v), the holder of
each share of Series B Cumulative Convertible Preferred Stock, upon the
conversion thereof subsequent to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution and prior to
the effectiveness of the conversion price adjustment in respect of such
distribution pursuant to Section 8(c)(iv) or Section 8(c)(v), shall be entitled
to receive for each share of Common Stock into which such share of Series B
Cumulative Convertible Preferred Stock is converted, the portion of the
evidences of indebtedness, shares of stock, cash and assets so distributed
applicable to one share of Common Stock; provided, however, that, at the
election of the Corporation (whose election shall be evidenced by a vote of the
Board of Directors) with respect to all holders so converting, the Corporation
may, in lieu of distributing to such holder any portion of such distribution not
consisting of cash or securities of the Corporation, pay such holder an amount
in cash equal to the fair market value thereof (as determined by the Board of
Directors, whose determination shall be conclusive and described in a vote of
the Board of Directors). If any conversion of a share of Series B Cumulative
Convertible Preferred Stock described in the immediately preceding sentence
occurs prior to the payment date for a distribution to holders of Common Stock
which the holder of the share of Series B Cumulative Convertible Preferred Stock
so converted is entitled to receive in accordance with the immediately preceding
sentence, the Corporation may elect (such election to be evidenced by a
resolution of the Board of Directors) to distribute to such holder a due bill
for the evidences of indebtedness, shares of stock, cash or assets to which such
holder is so entitled; provided that such due bill (i) meets any applicable
requirements of the principal national securities exchange or other market on
which the Common Stock is then traded and (ii) requires payment or delivery of
such evidences of indebtedness, shares of stock, cash or assets no later than
the date of payment or delivery thereof to holders of Common Stock receiving
such distribution. The rights provided in this Section 8(k) with respect to
distribution referred to in Section 8(c)(iv) or Section 8(c)(v) shall be in lieu
of, and not in addition to, the rights accorded to holders of Series B
Cumulative Convertible Preferred Stock in those Sections.
(l) Other. Notwithstanding any other provision in this Section
8 to the contrary, if the Corporation shall, by dividend or otherwise,
authorize, declare or make a distribution on its Common Stock referred to in
Section 8(c)(iv) and such distribution shall include shares of stock of one or
62
more corporations that immediately prior to such distribution was or would have
been a subsidiary (a "Spin-Off"), the holder of each share of Series B
Cumulative Convertible Preferred Stock shall be entitled to receive its pro rata
share of the securities distributed in the Spin-Off as if such holder had been
the holder of record of the number of shares of Common Stock into which the
Series B Cumulative Convertible Preferred Stock would be convertible (but for
any restrictions on convertibility contained in this Certificate of Vote) as of
the record date for such distribution. The rights provided in this Section 8(l)
with respect to Spin-Offs shall be in lieu of, and not in addition to, the
rights accorded to holders of Series B Cumulative Convertible Preferred Stock
with respect to Spin-Offs in Section 8(c)(iv).
9. Voting Rights.
(a) General. The holders of shares of Series B Cumulative
Convertible Preferred Stock shall each initially have Twenty and Sixty-Five
Thousand Six Hundred and Forty-Eight Hundred-Thousandths (20.65648) votes for
each share held, which such shares shall be voted as a class with the holders of
the Common Stock on all matters on which the Common Stock may vote, except as
set forth below. Upon the occurrence of any event that causes an adjustment to
the conversion price pursuant to Section 8(c), the number of votes possessed by
each share of Series B Cumulative Convertible Stock shall be adjusted such that
the number of votes possessed by each such share immediately after the event
giving rise to the adjustment under Section 8(c) shall be the number, rounded to
the nearest one-hundred thousandth, equal to the Liquidation Preference divided
by the conversion price immediately after such event. Any shares of Series B
Cumulative Convertible Preferred Stock held by the Corporation or any entity
controlled by the Corporation shall not have voting rights hereunder and shall
not be counted in determining the presence of a quorum.
(b) Special Default Voting Rights.
(i) Whenever a Special Default exists, (1) the number
of members of the Board of Directors shall be increased by such number as is
necessary to allow the election of the directors specified in clause (2), and
(2) the holders of the Series B Cumulative Convertible Preferred Stock, voting
separately as a class, shall have the right to elect an additional number of
directors to the Board of Directors such that Designated Directors selected by
the holders of the Series B Cumulative Convertible Preferred Stock, plus the
directors elected by such holders voting as a class under this clause,
constitute a majority of Board. Notwithstanding the foregoing sentence, the
holders of the Series B Cumulative Convertible Preferred Stock (voting
separately as a class) will not have the right to vote for additional directors
pursuant to this Section
63
9(b) where (x) such holders have exercised their right to elect additional
directors pursuant to Section 7(e)(iii), and (y) such additional directors
continue to serve as such. The right of the holders of the Series B Cumulative
Convertible Preferred Stock to vote for such additional directors shall
terminate at the earlier to occur of (A) when such Special Default no longer
exists or (ii) two years after the election of directors pursuant to clause (2)
of the first sentence of this Section. The term of office of all directors so
elected shall terminate immediately upon the termination of the right of the
holders of the Series B Cumulative Convertible Preferred Stock to vote for such
additional directors, and the number of directors of the Board of Directors
shall immediately thereafter be reduced.
(ii) The foregoing right of the holders of the Series B
Cumulative Convertible Preferred Stock with respect to the election of
additional directors may be exercised at each annual meeting of stockholders or
at any special meeting of stockholders held for such purpose. If the right to
elect directors shall have accrued to the holders of the Series B Cumulative
Convertible Preferred Stock more than thirty (30) days preceding the date
established for the next annual meeting of stockholders, the President of the
Corporation shall, within five (5) days after the delivery to the Corporation at
its principal office of a written request for a special meeting signed by the
holders of at least 10% of all outstanding shares of the Series B Cumulative
Convertible Preferred Stock, call a special meeting of the holders of the Series
B Cumulative Convertible Preferred Stock to be held as promptly as practicable
after the delivery of such request for the purpose of electing such additional
directors.
(iii) The holders of the Series B Cumulative
Convertible Preferred Stock referred to above voting as a class shall have the
right to remove with or without cause at any time and replace any directors such
holders shall have elected pursuant to this Section 9(c) and the holders of each
other class of stock of the Corporation shall not have the right to remove any
such directors.
(c) Class Voting Rights. So long as any shares of the Series B
Cumulative Convertible Preferred Stock are outstanding, the Corporation shall
not, directly or indirectly, without the affirmative vote or consent of the
holders of at least 66 2/3% (unless a higher percentage shall then be required
by applicable law or the Corporation's Articles) of all outstanding shares of
the Series B Cumulative Convertible Preferred Stock voting separately as a
class: (i) amend, alter or repeal any provision of the Articles, Certificate of
Vote, or the bylaws of the Corporation, if such amendment, alteration or repeal
would alter the contract rights, as expressly set forth herein, of the Series B
Cumulative Convertible Preferred Stock or otherwise to adversely affect the
64
rights of the holders thereof or the holders of the Common Stock, (ii) create,
authorize or issue, or amend the terms of in a manner adversely affect the
rights of the holders the Series B Cumulative Convertible Preferred Stock, or
reclassify shares of any authorized stock of the Corporation into, or increase
the authorized amount of, any Senior Dividend Stock, Senior Liquidation Stock,
Parity Dividend Stock, or Parity Liquidation Stock or any security convertible
into such senior or Parity Stock, or (iii) approve a Fundamental Change.
10. Outstanding Shares. For purposes of this Certificate of Vote, all
shares of Series B Cumulative Convertible Preferred Stock issued by the
Corporation shall be deemed outstanding except (i) from the date fixed for
redemption pursuant to Section 6 hereof, all shares of Series B Cumulative
Convertible Preferred Stock that have been so called for redemption under
Section 6, to the extent provided thereunder; (ii) from the date of surrender of
certificates representing shares of Series B Cumulative Convertible Preferred
Stock, all shares of Series B Cumulative Convertible Preferred Stock converted
into Common Stock or repurchased pursuant to Section 7 hereof; and (iii) from
the date of registration of transfer, all shares of Series B Cumulative
Convertible Preferred Stock held of record by the Corporation or any
majority-owned subsidiary of the Corporation.
11. Transfer Restrictions.
(a) Legends on Series B Cumulative Convertible Preferred Stock
and Common Stock. The certificates representing shares of Series B Cumulative
Convertible Preferred Stock shall, unless otherwise agreed by the Corporation
and the holders of any such certificates, bear a legend substantially to the
following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUABLE
UPON CONVERSION OR EXCHANGE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM
REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO PERINI CORPORATION TO THE EFFECT THAT SUCH
EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE.
IN ADDITION, THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
HYPOTHECATION OF THE SHARES REPRESENTED BY
65
THIS CERTIFICATE IS FURTHER SUBJECT TO RESTRIC TIONS WHICH ARE
CONTAINED IN THE RESTATED ARTICLES OF ORGANIZATION OF PERINI
CORPORATION, IN THE CERTIFICATE OF VOTE GOVERNING THESE SHARES AND IN A
STOCK PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, AS AMENDED, A COPY
OF EACH OF WHICH IS ON FILE WITH PERINI CORPORATION AND WILL BE
FURNISHED BY THE CORPORATION TO THE STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE."
(b) Transfer Agent Requirements. The transfer agent (which may
be the Corporation) for the Series B Cumulative Convertible Preferred Stock
shall not be required to accept for registration of transfer any shares of
Series B Cumulative Convertible Preferred Stock bearing the legend contained in
paragraph (a) above, except upon presentation of evidence satisfactory to
transfer agent that the restrictions on transfer of shares of the Series B
Cumulative Convertible Preferred Stock referred to in the legend in paragraph
(a) have been complied with, all in accordance with such reasonable regulations
as the Corporation may from time to time agree with the transfer agent for
shares of the Series B Cumulative Convertible Preferred Stock.
12. Status of Acquired Shares. Shares of Series B Cumulative
Convertible Preferred Stock redeemed or repurchased by the Corporation, received
upon conversion pursuant to Section 8 or otherwise acquired by the Corporation
will be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to class, and may thereafter be issued, but not as
shares of Series B Cumulative Convertible Preferred Stock.
13. Special Covenants.
(a) Nomination of Directors. Effective as of the Original
Issue Date, the Corporation shall elect to the board of directors three
directors designated by the holders of such stock (such directors, together with
their replacements as provided below, the "Designated Directors"), one of whom
shall be a Class I director, one of whom shall be a Class II director, and one
of whom shall be a Class III director. The holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall designate the classes of such
initial Designated Directors.
(i) In the event that any Designated Director shall
resign, be unable to serve, or be removed (a "Replaced Designated Director"),
the holders of a majority of the Series B Cumulative Convertible Preferred Stock
shall have the right to designate a replacement to serve as Designated
66
Director until the next meeting of shareholders at which directors of the same
class as the Replaced Designated Director are elected. Any Designated Director
may be removed from the Board, with or without cause, by the holders of a
majority of the Series B Cumulative Convertible Preferred Stock.
(ii) Except as provided below, at any time when the
term of a Designated Director shall have ended and there shall be a meeting of
shareholders of the Corporation to elect directors, the Corporation shall
nominate for election to the board of directors, as a successor to any
Designated Director serving pursuant to Section 13(a) or clause (i) of such
provision, such person as is designated to be a Designated Director by the
holders of a majority of the Series B Cumulative Convertible Preferred Stock.
(iii) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares (defined below) representing more than sixty-six and two-thirds percent
(66-2/3%) and less than or equal to eighty percent (80%) of the voting power of
the Series B Cumulative Convertible Preferred Stock issued on the Original Issue
Date (plus any payment-in-kind dividends paid thereon), the number of Designated
Directors shall be reduced to two. If there are then more than two Designated
Directors serving on the board, the holders of a majority of the Series B
Cumulative Convertible Preferred Stock shall remove one such Designated Director
and the holders of such stock shall not have any right, pursuant to clause (ii)
or otherwise, to cause the Corporation to nominate a designated successor to
such removed director.
(iv) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares representing more than eighty percent (80%) and less than or equal ninety
percent (90%) of the voting power of the Series B Cumulative Convertible
Preferred Stock issued on the Original Issue Date (plus any payment-in-kind
dividends paid thereon), the number of Designated Directors shall be reduced to
one. If there is then more than one Designated Director serving on the board,
the holders of a majority of the Series B Cumulative Convertible Preferred Stock
shall remove all but one such Designated Director and the holders of such stock
shall not have any right, pursuant to clause (ii) or otherwise, to cause the
Corporation to nominate a designated successor to such removed director(s).
(v) In the event that the holders of the Series B
Cumulative Convertible Preferred Stock dispose of such stock or Conversion
Shares representing more than ninety percent (90%) of the voting power of the
Series B Cumulative Convertible Preferred Stock issued on the Original Issue
Date (plus any payment-in-kind dividends paid thereon), there shall be no
67
Designated Directors and any Designated Directors then serving on the board
shall be removed, and their terms in office shall immediately expire, without
any further action of the holders of such stock.
(vi) The right to nominate directors pursuant to this
provision is in addition to, and not in limitation of, any other rights and
powers of the Series B Cumulative Convertible Preferred Stock. Directors
nominated by the holders of the Series B Cumulative Convertible Preferred Stock
in their capacity as holders of capital stock of the Corporation and not
pursuant to clause (i), (ii), or (iii) above are not Designated Directors for
purposes of this Certificate of Vote.
(vii) The vote of the holders of Series B Cumulative
Convertible Preferred Stock referred to in this Section may be exercised at a
meeting of such holders or by written consent of holders with the requisite
percentage of the voting power outstanding.
(viii)Upon the reasonable request of the Corporation,
the holders of the Series B Cumulative Convertible Preferred Stock shall certify
in writing to the Corporation their holding of Conversion Shares.
(ix) For purposes of this Section:
(1) "voting power" shall mean the number of
votes each such share possesses in the election of
directors; and
(2) "Conversion Shares" shall mean the
shares of Common Stock which are both (A) issuable or
issued upon conversion of the Series B Cumulative
Convertible Preferred Stock pursuant to the terms of
this Certificate of Vote of Directors, and (B) held
by a person who either (x) acquired the shares of the
Series B Cumulative Convertible Preferred Stock from
which the shares referred to in clause (A) of this
definition were converted and has held such Common
Stock continuously thereafter, or (y) acquired the
shares referred to in clause (A) of this definition
from a person referred to in clause (B)(x) of this
definition through a distribution to the partners by,
or dissolution of, a partnership.
(b) Appointment to Executive Committee. At any time at
which the holders of the Series B Cumulative Convertible Preferred Stock shall
have the right to nominate directors for election to the board pursuant to
Section 13(a) hereof, such holders shall also have the right to designate a like
number of persons from among the members of the board of directors to be
members of the Executive Committee of the board (the "Designated Executive
Committee Members"). In the event that any Designated Executive Committee Member
68
shall resign, be unable to serve, or be removed, the holders of a majority of
the Series B Cumulative Convertible Preferred Stock shall have the right to
designate a replacement Designated Executive Committee Member. Any Designated
Executive Committee Member may be removed from the Executive Committee, with or
without cause, by the holders of a majority of the Series B Cumulative
Convertible Preferred Stock.
(c) Approval of Certain Actions. Neither the Corporation nor
the Board shall take any of the following actions without the approval of a
majority of the members of the Executive Committee of the Board: (A) any
borrowing or guarantee by the Corporation exceeding $15 million, (B) except for
issuance of stock or stock options pursuant to (x) the Corporation's incentive
compensation plans and programs, (y) any warrants outstanding on the Original
Issue Date, or (z) the Rights, any issuance of stock (whether common or
preferred, whether voting or non-voting, whether junior, pari passu, or senior
to the Series B Cumulative Convertible Preferred Stock) other than Common Stock
in an aggregate amount not exceeding five percent (5%) of the Common Stock
issued and outstanding on the Original Issue Date, (C) any strategic alliance
(other than a construction joint venture) involving a capital commitment by the
Corporation exceeding $5 million, (D) any asset sale by the Corporation or lease
by it as lessor exceeding $5 million (other than equipment dispositions in the
normal course of business); (E) any redemption or amendment of the Rights or the
preferred stock of the Corporation issuable upon the exercise of such Rights, or
any amendment of the Rights Agreement; and (F) any termination of (other than a
termination upon expiration) or amendment to the management agreement among the
Corporation, Ronald Tutor and Tutor-Saliba Corporation; provided, however, that
for purposes of this Section 13(c), approval of the Executive Committee shall
not be required for any decision by the Board of Directors to redeem the Series
B Cumulative Convertible Preferred Stock pursuant to Section 6(a).
Notwithstanding the foregoing sentence, the board of directors of the
Corporation may take any of the actions specified in the preceding sentence if,
after having consulted with and considered the advice of outside counsel, it has
reasonably determined in good faith that the failure of the board to take such
action would be likely to cause the members of such board to breach their
fiduciary duties under applicable law.
14. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were
69
increased or decreased, then such court may make such change as shall be
necessary to render the provision in question effective and valid under
applicable law.
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this 15th day of January in the year 1997.
/s/ David B. Perini, President
- ------------------------------
/s/ Richard E. Burnham, Clerk
- -----------------------------
- --------------------------------------------------------------------------------
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $100.00 having been paid,
said certificate is hereby filed this 16th day of
January 1997.
/s/William Francis Galvin
William Francis Galvin
Secretary of the Commonwealth
Photocopy of Certificate to Be Sent
To:
Richard A. Soden, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Tel: (617) 570-1000
70