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Exhibit (d)
SHAREHOLDERS' AGREEMENT
DATED AS OF _______ ___, 2000
AMONG
XXXXX-XXXXXX CORPORATION,
XXXXXX X. TUTOR,
O&G INDUSTRIES, INC.,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
XXXX CAPITAL PARTNERS, L.P.
PB CAPITAL PARTNERS, L.P.,
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS,
THE UNION LABOR LIFE INSURANCE COMPANY,
ACTING ON BEHALF OF ITS SEPARATE ACCOUNT P,
AND
PERINI CORPORATION
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TABLE OF CONTENTS
Page
ARTICLE I Definitions ..................................................... 1
SECTION 1.01 Definitions ................................................ 1
SECTION 1.02 Other Terms ................................................ 6
ARTICLE II Shares Subject to this Agreement; Transfers .................... 7
SECTION 2.01 Shares Subject to this Agreement ........................... 7
SECTION 2.02 Restrictions on Transfer ................................... 7
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings ...... 8
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs .. 8
SECTION 2.05 Attempted Transfers in Violation of this Agreement ......... 9
SECTION 2.06 Legend ..................................................... 9
ARTICLE III Put Rights .................................................... 11
SECTION 3.01 Put Option ................................................. 11
SECTION 3.02 Put Period ................................................. 11
SECTION 3.03 Put Notice ................................................. 11
SECTION 3.04 Put Price .................................................. 12
SECTION 3.05 Put Closing ................................................ 12
SECTION 3.06 Assignment of Put Option ................................... 12
SECTION 3.07 RNT Obligation Under Put Option ............................ 12
SECTION 3.08 Put Postponement ........................................... 13
SECTION 3.09 Exercise of Put Option Not a Transfer ...................... 13
ARTICLE IV Call Rights .................................................... 13
SECTION 4.01 Call Option ................................................ 13
SECTION 4.02 Call Period ................................................ 13
SECTION 4.03 Call Notice ................................................ 13
SECTION 4.04 Call Price ................................................. 13
SECTION 4.05 Call Closing ............................................... 13
SECTION 4.06 Assignment of Call Option .................................. 14
SECTION 4.07 Call Postponement .......................................... 14
SECTION 4.08 Exercise of Call Option Not a Transfer ..................... 14
ARTICLE V Rights of First Refusal ......................................... 15
SECTION 5.01 Right of First Refusal on Transfers ........................ 15
SECTION 5.02 Notice of Intent to Purchase ............................... 15
SECTION 5.03 Offered Shares Closing ..................................... 16
SECTION 5.04 Sale to Third Party ........................................ 16
SECTION 5.05 Limitation as to National Union ............................ 17
ARTICLE VI Tag-Along Rights ............................................... 17
SECTION 6.01 Tag-Along Option ........................................... 17
SECTION 6.02 Sale to Third Party ........................................ 17
SECTION 6.03 Limitation as to National Union ............................ 18
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ARTICLE VII The Company's Board Of Directors; Publicity ................... 18
SECTION 7.01 Nominees ................................................... 18
SECTION 7.02 Voting for Election of Directors ........................... 20
SECTION 7.03 Vacancy; Removal ........................................... 20
SECTION 7.04 Continuation as Director ................................... 20
SECTION 7.05 Publicity .................................................. 20
SECTION 7.06 Observer Rights for Shareholder Designee ................... 20
SECTION 7.07 Subscription Rights ........................................ 21
ARTICLE VIII Miscellaneous ................................................ 22
SECTION 8.01 Injunctive Relief .......................................... 22
SECTION 8.02 Entire Agreement ........................................... 22
SECTION 8.03 Binding Effect; Benefit .................................... 22
SECTION 8.04 Assignability .............................................. 22
SECTION 8.05 Amendment; Waiver; Termination ............................. 22
SECTION 8.06 Notices .................................................... 23
SECTION 8.07 Fees and Expenses .......................................... 25
SECTION 8.08 Headings ................................................... 25
SECTION 8.09 Counterparts ............................................... 25
SECTION 8.10 Governing Law; Consent to Jurisdiction ..................... 26
SECTION 8.11 Limitations on Damages ..................................... 26
SECTION 8.12 Severability ............................................... 26
SECTION 8.13 Amendments to Laws ......................................... 26
SECTION 8.14 No Third Party Beneficiaries ............................... 26
SECTION 8.15 Mutual Drafting ............................................ 27
SECTION 8.16 Further Representations .................................... 27
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SHAREHOLDERS' AGREEMENT dated as of ________ __, 2000 (the
"Agreement"), by and among Xxxxx-Xxxxxx Corporation, a California corporation
("TSC"), Xxxxxx X. Tutor ("RNT"), National Union Fire Insurance Company of
Pittsburgh, PA, a Pennsylvania corporation ("National Union"), O&G Industries,
Inc., a Connecticut corporation ("O&G"), XXXX Capital Partners, L.P., a
California limited partnership ("XXXX"), PB Capital Partners, L.P., a Delaware
limited partnership ("PB Capital"), The Common Fund for Non-Profit
Organizations, a New York non-profit corporation ("The Common Fund"), and The
Union Labor Life Insurance Company, a Maryland corporation acting on behalf of
its Separate Account P ("ULLICO"), and Perini Corporation, a Massachusetts
corporation (the "Company"). Except to the extent a signatory hereto is
explicitly excluded from the application of particular provisions of this
Agreement as specified below, TSC, National Union, O&G, XXXX, XX Capital, The
Common Fund and ULLICO are collectively referred to as the "Shareholders". O&G,
XXXX, XX Capital, The Common Fund and ULLICO shall each be a party to this
Agreement solely for purposes of Sections 2.04, 2.05 and 2.06 and Articles VI,
VII and VIII. The Company shall be a party to this Agreement solely for purposes
of Sections 2.03, 2.04, 2.05 and 2.06 and Articles VII and VIII.
W I T N E S S E T H :
WHEREAS, pursuant to the Securities Purchase Agreement (as defined
below) TSC, National Union and O&G have agreed to acquire securities of the
Company; and
WHEREAS, RNT is the sole shareholder of TSC; and
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their relative rights, duties and obligations after
consummation of the transactions contemplated by the Securities Purchase
Agreement; and
WHEREAS, O&G, XXXX, XX Capital, The Common Fund and ULLICO have agreed
to become parties to this Agreement to govern certain restricted transfers as
set forth in Sections 2.04, 2.05 and 2.06, to provide tag-along rights and
obligations as set forth in Article VI and to provide certain rights and
obligations with respect to the election of directors, observer status and
subscription as set forth in Article VII only.
NOW, THEREFORE, the Shareholders having authorized the execution and
delivery of this Shareholders' Agreement as required by the laws of the
jurisdiction in which each is incorporated or organized, as the case may be, and
intending to be bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. The following terms used in this Agreement
have the following meanings:
(a) "Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person, pro-
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vided that no security holder of the Company shall be deemed an Affiliate of any
other security holder solely by reason of any investment in the Company.
(b) "Beneficially Own" shall have the meaning set forth in
Rules 13d-3 or 16a-1 of the Exchange Act.
(c) "XXXX" has the meaning ascribed to it in the introductory
paragraph to this Agreement.
(d) "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are required or authorized
by law to close.
(e) "Call Event" means the proposed Transfer of Put/Call
Shares to a bona fide purchaser through a registered public offering pursuant to
registration rights granted under the Registration Rights Agreement.
(f) "Call Return" means 14% per annum.
(g) "Closing" means the Closing as defined in the Securities
Purchase Agreement.
(h) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(i) "The Common Fund" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(j) "Common Stock" means the common stock, par value $1.00 per
share, of the Company.
(k) "Company" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
(l) "Control" (including with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the power, direct or indirect, (i) to vote or
direct the voting of more than 50% of the outstanding shares of voting
securities of such Person, or (ii) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise, except
that no change of control will be deemed to have occurred as a result of
customary rights granted in any indenture, credit agreement or other agreement
or instrument unless and until there has been a default under the terms of that
agreement and the lender exercises the rights granted therein.
(m) "Covered Common Stock" means the shares of Common Stock of
the Company purchased by a Shareholder pursuant to the Securities Purchase
Agreement or otherwise owned by a Shareholder on the date hereof.
(n) "Definitive Agreements" mean this Agreement and the
Securities Purchase Agreement, each as amended, modified or supplemented from
time to time.
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(o) "Distributable Property-in-Kind" means Property-in-Kind
(other than Property-in-Kind that has been included in the calculation of
Distributions) distributed or declared for distribution to a Shareholder on
account of any Shares or other securities distributed in kind on account of
Shares.
(p) "Distributions" mean (i) all cash dividends declared and
paid on account of any Share, plus (ii) the cash proceeds received by a
Shareholder from the sale of Property-in-Kind (minus all costs incurred by the
Shareholder in connection with the sale, including attorneys fees and expenses),
plus (iii) the Fair Market Value of any Property-in-Kind received by the
Shareholder in exchange for Shares.
(q) "Equity Security" means (i) any Common Stock or other
Voting Securities, (ii) any securities of the Company convertible into or
exchangeable for Common Stock or other Voting Securities or (iii) any options,
rights or warrants (or any similar securities) issued by the Company to acquire
Common Stock or other Voting Securities, in each case whether preferred or
common, of any class or series, outstanding prior to or any time after the date
of this Agreement.
(r) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(s) "Fair Market Value" means (i) with respect to any security
listed on a national securities exchange or quoted on the National Association
of Securities Dealers, Inc. National Market System, the average of the daily
closing prices on the American Stock Exchange (or the principal exchange or
automated trading system on which such security may be listed or may trade) for
the twenty (20) consecutive trading days commencing on the fifth (5th) trading
day prior to the date as of which the Fair Market Value is being determined, and
(ii) with respect to any security other than one described in clause (i) or any
other property or assets, the Fair Market Value shall be the fair market value
of such security or property established by two independent investment banking
firms with national reputations, one of who will be selected by the Put
Purchaser or Call Purchaser, as the case may be, and one of whom will be
selected by the Put Seller or Call Seller, as the case may be. If the two
investment banking firms arrive at fair market values that differ by more than
10%, the two investment banking firms shall select a third investment banking
firm with a national reputation. The Fair Market Value shall be equal to the
average of the two appraisals closest in value to each other in the case of
three appraisals, or the average of the two appraisals if there is not a third
appraisal. The closing price referred to in clause (i) for each day shall be the
closing price, if reported, or, if the closing price is not reported, the
average of the closing bid and asked prices as reported by the Nasdaq National
Market (or such principal exchange or market) or a similar source selected from
time to time by the Company for quotation of its Common Stock. In the event the
closing prices required by clause (i) are unavailable, Fair Market Value shall
be determined based on the ten (10) consecutive trading days commencing on the
fifth (5th) trading day prior to the relevant date or, if such closing prices
are unavailable, Fair Market Value shall be determined as provided in clause
(ii).
(t) "Initial Investment per Share" means the $4.25 per Share
paid by National Union for the Covered Common Stock under the Securities
Purchase Agreement, as
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adjusted for any subsequent common stock dividends, stock splits, reverse stock
splits or other similar transactions.
(u) "National Union" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(v) "New Security" means any Equity Security issued by the
Company after the Closing; provided that "New Security" shall not include (i)
any securities issuable upon conversion of any convertible Equity Security, (ii)
any securities issuable upon exercise of any option, warrant or other similar
Equity Security, (iii) any securities issuable in connection with any stock
split, stock dividend or recapitalization of the Company where such securities
are issued to all stockholders of the Company on a pro rata basis, (iv) any
securities issued to officers, employees or directors of the Company or any of
its Subsidiaries pursuant to any Board-approved officer, employee or director
benefit plan or arrangement, (v) any securities issued in connection with any
transaction whereby the Company acquires the stock, assets or business of a
third party not prohibited by this Agreement, or (vi) any security issued in any
public offering registered under the Securities Act .
(w) "O&G" has the meaning ascribed to it in the introductory
paragraph of this Agreement.
(x) "PB Capital" has the meaning ascribed to it in the
introductory paragraph to this Agreement.
(y) "Person" means and includes an individual, a partnership,
a joint venture, a corporation, a trust, a limited liability company, an
unincorporated organization, any foreign, federal, state or local court or
tribunal or administrative, governmental or regulatory body, agency commission,
division, department, public body or other authority, or any other organization
or entity.
(z) "Pro Rata Share" means, as to any Shareholder or Permitted
Transferee, the fraction of an entire issuance of New Securities, the numerator
of which shall be the sum of (w) the number of shares of Common Stock owned by
such Shareholder or Permitted Transferee immediately prior to such issuance of
such New Securities plus (x) the number of shares of Common Stock into which
then outstanding convertible securities (including, without limitation, options
and warrants) owned by such Shareholder or Permitted Transferee are then
exercisable or convertible, and the denominator of which shall be the sum of (y)
the aggregate number of shares of Common Stock outstanding immediately prior to
such issuance of such New Securities plus (y) the number of shares of Common
Stock into which then outstanding convertible securities (including, without
limitation, options and warrants) are then exercisable or convertible.
(aa) "Property-in-Kind" means securities, personal property or
other assets (other than cash or additional shares of Common Stock) distributed
to a Shareholder on account of Shares or other securities distributed in kind on
account of Shares, whether through a dividend, recapitalization, reorganization,
merger or similar transaction.
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(bb) "Put Event" means (i) a change of Control of the Company;
(ii) a change of Control of TSC; (iii) one or more Transfers (other than a
Transfer to a Permitted Transferee) by TSC and its Permitted Transferees of
shares of Common Stock such that RNT fails to have sole direct or indirect
Beneficial Ownership of at least 10% of the outstanding Common Stock of the
Company (for purposes hereof, the voting securities of the Company Beneficially
Owned, directly or indirectly, by TSC shall be deemed solely Beneficially Owned
indirectly by RNT), (iv) RNT shall not be involved in the management of the
Company or TSC, (v) breach of any provisions of the Definitive Agreements
arising out of the sole actions of RNT or TSC; (vi) an order shall be entered by
a court of competent jurisdiction finding TSC or RNT to be bankrupt or
insolvent, ordering or approving liquidation or reorganization of TSC or
appointing a receiver for all or substantially all of the property of TSC or RNT
and such order shall not be vacated or stayed within 60 days, or an assignment
shall be made by TSC or RNT for the benefit of its creditors; or (vii)
acceleration of payment of a material principal amount of the senior debt of the
Company. No Transfer of any security of the Company by National Union or any
Permitted Transferee or Co-investor shall constitute or give rise to a Put Event
hereunder.
(cc) "Put Return" means 10% per annum.
(dd) "Put/Call Shares" means up to 50% of the Shares purchased
by National Union at Closing, which Shares (including Shares issued on account
of any subsequent Common Stock dividends, stock splits, reverse stock splits or
other similar transactions relating thereto) shall bear the legends set forth in
subsections 2.06(a) and (b) and which shall be represented by a certificate
separate and distinct from any Shares held by National Union or its Permitted
Transferee, if any, that are not identically legended, and (ii) Shares
represented by certificates issued to replace the certificate(s) referred to in
the preceding clause; provided, however, that the Put/Call Shares shall not
include Shares Transferred in accordance with Article V (except as provided in
Section 5.04) or Article VI (except as provided in Section 6.02) of this
Agreement. Shares shall cease to be Put/Call Shares upon the lapse or
termination of the Put Option or Call Option.
(ee) "Registration Rights Agreement" means that certain
Registration Rights Agreement dated even date herewith among the Company, TSC,
National Union and O&G, as amended, modified or supplemented from time to time.
(ff) "ROFR Shares" means: (i) as to National Union, its
Permitted Transferees and any Co-Investors, any Put/Call Shares owned by such
party (including Shares issued on account of any subsequent Common Stock
dividends, stock splits, reverse stock splits or other similar transactions
relating thereto), and (ii) as to TSC and its Permitted Transferees, any Shares
owned by such party immediately following the Closing (including Shares issued
on account of any subsequent Common Stock dividends, stock splits, reverse stock
splits or other similar transactions relating thereto).
(gg) "SEC" means the Securities and Exchange Commission.
(hh) "Securities Act" means the Securities Act of 1933, as
amended.
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(ii) "Securities Purchase Agreement" means that certain
Securities Purchase Agreement dated even date herewith entered into by and among
the Company, TSC, National Union and O&G relating to the purchase and sale of
Covered Common Stock, as amended, modified or supplemented from time to time.
(jj) "Shareholder" has the meaning ascribed to it in the
introductory paragraph to this Agreement and also includes any Permitted
Transferee, whether in connection with its execution and delivery as of the date
hereof, or otherwise, so long as such Person Beneficially Owns any Shares and
the Agreement has not terminated.
(kk) "Shares" means shares of Covered Common Stock as adjusted
for stock splits, reverse stock splits and Common Stock dividends declared and
paid on account of Covered Common Stock and similar transactions.
(ll) "Subsidiary" means any Person of which a Shareholder or
Permitted Transferee shall now or hereafter own or be owned by, directly or
indirectly, through one or more Subsidiaries or otherwise, a Person holding
equity interests representing 100% of the voting securities of such Person.
(mm) "Target Investment Value per Share" means, as of the date
of any Put Notice or Call Notice, the amount to be paid to National Union or its
Permitted Transferee, if any, such that the internal rate of return (calculated
on an annual basis) on National Union's Initial Investment per Share, taking
into account Distributions, shall be equal to the Put Return or Call Return, as
the case may be.
(nn) "Trading Day" with respect to a securities exchange or
automated quotation system means a day on which such exchange or automated
quotation system is open and conducting business.
(oo) "Transfer" (including with correlative meanings, the
terms "transferring" and "transferred") means the direct or indirect sale,
assignment, transfer, grant of a participation or derivative interest in, pledge
or other disposition of any Shares (or solicitation of any offers to buy or
otherwise acquire, or take a pledge of, any Shares).
(pp) "ULLICO" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
(qq) "Voting Security" means at any time shares of any class
of capital stock of the Company which are then entitled to vote generally in the
election of directors.
SECTION 1.02 Other Terms. Each of the following terms is defined in the
Section set forth opposite such term:
Term Section
---- -------
Assignee 3.07
Call Closing 4.05
Call Notice 4.04
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Call Option 4.01
Call Period 4.02
Call Postponement 4.07
Call Price 4.05
Call Purchaser 4.01
Call Seller 4.01
Co-Investor 2.03
Disposing Shareholder 6.01
NOLs 2.04
Offer 5.01
Offered Shares 5.01
Offered Shares Closing 5.03
Permitted Transferee 2.03
Proposed Transferee 5.01
Public Offering 2.03
Purchasing Shareholder 5.02
Put Closing 3.06
Put Event Period 3.02
Put Notice 3.04
Put Option 3.01
Put Period 3.02
Put Price 3.05
Put Postponement 3.09
Put Purchaser 3.01
Put Seller 3.01
Selling Shareholder 5.01
Subscription Notice 7.07
ARTICLE II
SHARES SUBJECT TO THIS AGREEMENT; TRANSFERS
SECTION 2.01 Shares Subject to this Agreement. Except as otherwise
provided in any Article of this Agreement, the Shares owned by any Shareholder,
Permitted Transferee or Co-Investor from time to time shall be subject to this
Agreement. Shares transferred by any Shareholder, Permitted Transferee or
Co-Investor shall not be entitled to the benefits of, or subject to the
obligations in, this Agreement unless otherwise expressly provided for in this
Agreement.
SECTION 2.02 Restrictions on Transfer. No Shareholder, Permitted
Transferee or Co-Investor may, directly or indirectly, Transfer to third parties
or any other shareholder of the Company, any Shares (including, in the case of
National Union or its Permitted Transferee, the Put/Call Shares), in whole or in
part, unless both (i) such Shares are Transferred pursuant to Section 2.04 of
this Agreement, and (ii) such Shares are Transferred, directly or indirectly, in
accordance with Articles III, IV, V and VI of this Agreement to the extent such
provisions are
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applicable. For purposes hereof, an indirect Transfer shall include the Transfer
of Control of any Shareholder except where the indirect transferee is a
Permitted Transferee.
SECTION 2.03 Permitted Transferees; Co-Investors; Public Offerings.
(a) A "Permitted Transferee" shall mean, as to any
Shareholder, (i) a Subsidiary of such Shareholder, (ii) any Person that owns,
directly or indirectly, 100% of the outstanding capital stock of such
Shareholder or (iii) a Subsidiary of a person described in clause (ii). A
Shareholder shall be permitted to Transfer up to 100% of its Shares to a
Permitted Transferee without first complying with any provisions of this
Agreement other than Sections 2.04 and 2.05. A Permitted Transferee shall be
entitled to the benefits of, and be subject to the obligations in, this
Agreement. A Permitted Transferee shall be required to execute and deliver a
counterpart of this Agreement and such other agreements as the Shareholders and
the Company shall reasonably request agreeing to be bound hereby and such
Permitted Transferee shall be deemed to be a Shareholder hereunder and a party
to this Agreement.
(b) A "Co-Investor" shall mean any Person (other than a
Permitted Transferee or a purchaser in a bona fide registered public offering)
to which any Shareholder, Permitted Transferee or Co-Investor Transfers Shares.
Notwithstanding anything herein to the contrary, (x) a Co-Investor shall have no
rights or obligations under Articles III, IV, V or VI of this Agreement (except
as otherwise provided in Sections 5.04 or 6.02), and (y) a Co-Investor shall
have no rights to nominate a director under Article VII but shall be subject to
the voting requirements of Section 7.02 thereof.
(c) A Shareholder shall be permitted to Transfer up to 100% of
its Shares (other than Put/Call Shares) to a bona fide purchaser through a
registered public offering pursuant to registration rights granted under the
Registration Rights Agreement (a "Public Offering") without first complying with
any provisions of this Agreement other than Sections 2.04 and 2.05 and Articles
V and VI. Persons who acquire their Shares in a Public Offering shall not have
any rights or obligations under this Agreement and shall not become parties
hereto.
SECTION 2.04 Restrictions on Transfer Relating to Preservation of NOLs.
Notwithstanding any other provision of the Agreement to the contrary, to
preserve the Company's ability to fully utilize its net operating loss
carryforwards ("NOLs"), which each Shareholder deems to be a material favorable
attribute of its investment in the Equity Securities of the Company, each of the
Shareholders, their Permitted Transferees and the Co-Investors agrees that it
will not purchase or sell any Equity Securities of the Company during the
three-year period commencing on the Closing Date unless it meets each of the
following four conditions:
(a) Such Shareholder, Permitted Transferee or Co-Investor
shall notify each of the Company and the other parties hereto in writing at
least fifteen (15) Business Days in advance of any proposed purchase or sale;
(b) Other than with respect to Put/Call Shares being
Transferred in accordance with Article III or IV of this Agreement, all the
other Shareholders shall be given the opportunity to participate in any proposed
purchase or sale in proportion to the amount of Equity
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Securities of the Company held by such Shareholder as of the date of the notice
referred to in clause (a);
(c) Each Shareholder, Permitted Transferee or Co-Investor
shall consummate any proposed purchase or sale only to the extent that tax
advisors for the Company (or in the alternative, tax advisors retained by the
selling party reasonably acceptable to the Company and the Shareholders) have
provided the Company with written advice that the proposed purchase or sale will
not impair the ability of the Company to fully utilize its remaining NOLs; the
Company shall use commercially reasonable efforts to obtain tax advice referred
to in this clause (c) from its tax advisors and shall cooperate with the
reasonable requests for information from the Shareholders and their respective
tax advisors retained pursuant to this clause (c); and
(d) Each Permitted Transferee and Co-Investor shall execute
and deliver a counterpart of this Agreement or such other agreements as the
Shareholders and the Company shall reasonably request as to the existence and
enforceability of Sections 2.04 and 2.05 and such Permitted Transferee or
Co-Investor shall be deemed to be a Shareholder hereunder and a party to this
Agreement for such purposes.
In addition, each of the Shareholders and their respective Permitted Transferees
agrees that during the three year period commencing on the Closing Date, it will
and it will use commercially reasonable efforts to cause any director designated
by it to - vote against any issuance or redemption of Equity Securities by the
Company if such issuance or redemption would impair the ability of the Company
to fully utilize its remaining NOLs unless such issuance or redemption is
authorized by Shareholders and their Permitted Transferees holding at least
two-thirds of the Shares then held by such persons.
SECTION 2.05 Attempted Transfers in Violation of this Agreement. Any
attempt by a Shareholder, Permitted Transferee or Co-Investor to transfer Equity
Securities of the Company or any interest therein, directly or indirectly, to
any Person in violation of any provision of this Agreement shall be void ab
initio and the Company shall have no obligation to, and shall refuse to,
register such Equity Securities of the Company in the name of the transferee and
the transferee shall have no rights with respect to such Equity Securities.
SECTION 2.06 Legend.
(a) In addition to any other legend that may be required
pursuant to the Securities Purchase Agreement or otherwise, each certificate for
the Shares that is issued to any Shareholder shall bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER (INCLUDING RIGHTS OF FIRST REFUSAL
AND TAG-ALONG RIGHTS), ALL AS SET FORTH IN THE SHAREHOLDERS'
AGREEMENT DATED AS OF ______ ___, 2000. THE HOLDER OF THIS
CERTIFICATE MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL
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MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN
FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE
SECRETARY OF THE COMPANY."
(b) In addition to any other legend that may be required, each
certificate for the Put Shares that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO PUT AND CALL OPTIONS AS SET FORTH IN THE
SHAREHOLDERS' AGREEMENT DATED AS OF ________ ___, 2000 AND ARE
NOT TRANSFERABLE EXCEPT AS PERMITTED UNDER THAT AGREEMENT. THE
HOLDER OF THIS CERTIFICATE MAY REQUEST A COPY OF THE
SHAREHOLDERS' AGREEMENT FROM THE COMPANY, A COPY OF WHICH THE
COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE WITHOUT
CHARGE WITHIN FIVE (5) DAYS AFTER RECEIPT OF THE REQUEST
ADDRESSED TO THE SECRETARY OF THE COMPANY."
(c) In addition to any other legend that may be required, each
certificate for Equity Securities that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER IN ORDER TO PRESERVE THE
COMPANY'S ABILITY TO UTILIZE ITS NET OPERATING LOSS
CARRYFORWARDS AS SET FORTH IN THE SHAREHOLDERS' AGREEMENT
DATED AS OF ________ ___, 2000 AND ARE NOT TRANSFERABLE EXCEPT
AS PERMITTED UNDER THAT AGREEMENT. THE HOLDER OF THIS
CERTIFICATE MAY REQUEST A COPY OF THE SHAREHOLDERS' AGREEMENT
FROM THE COMPANY, A COPY OF WHICH THE COMPANY WILL MAIL TO THE
HOLDER OF THIS CERTIFICATE WITHOUT CHARGE WITHIN FIVE (5) DAYS
AFTER RECEIPT OF THE REQUEST ADDRESSED TO THE SECRETARY OF THE
COMPANY."
(d) The same legends shall be placed on all certificates for
Shares and other Equity Securities, as the case may be, that are or become
subject to this Agreement. The failure to place legends on a certificate shall
not affect the application of this Agreement to the Shareholders.
(e) If any Shares shall cease to be subject to the
restrictions on Transfer under this Article II, the holder may request that the
Company remove the legend set forth in Section 2.06(a) or, if the Shares shall
cease to be Put/Call Shares, the holder may request the Company to remove the
legend set forth in Section 2.06(b), or, if Equity Securities shall cease to be
subject to the restrictions on Transfer set forth in Section 2.04, the holder
may request
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the Company to remove the legend set forth in Section 2.06(c)and issue a new
certificate evidencing such Equity Securities without the applicable legend
required to be endorsed thereon, if such legend is no longer applicable.
ARTICLE III
PUT RIGHTS
SECTION 3.01 Put Option. Subject to Section 2.04 (other than subsection
2.04(b)), National Union and its Permitted Transferees, if any (collectively the
"Put Seller") shall have the right, at their collective discretion, to cause TSC
or its Assignee (as hereafter defined) (a "Put Purchaser") to purchase (the "Put
Option") all (but not less than all) of the Put/Call Shares owned by the Put
Seller as of the date notice is given pursuant to Section 3.03; provided,
however, that during a Put Event Period, National Union may elect to include
within the term "Put/Call Shares" for purposes of this Article III any other
Shares purchased by National Union at Closing then owned by it (including Shares
issued on account of any subsequent Common Stock dividends, stock splits,
reverse stock splits or other similar transactions relating thereto).
SECTION 3.02 Put Period. The "Put Period" shall be the period
commencing on the third anniversary of the Closing and ending on the sixth
anniversary of the Closing. In addition, a "Put Event Period" shall also
commence on the occurrence of a Put Event and shall continue for ninety (90)
days thereafter.
SECTION 3.03 Put Notice. The Put Seller shall exercise the Put Option
by delivery of written notice to the Put Purchaser during the Put Period or Put
Event Period, as the case may be. Upon receipt of a Put Notice in accordance
with the terms hereof, the Put Seller shall be obligated to sell all of the
Put/Call Shares then outstanding free and clear of all liens and encumbrances
created by it or its Affiliates (other than pursuant to this Agreement) and the
Put Purchaser shall be obligated to purchase all of such Put/Call Shares at the
applicable Put Price in accordance with, and subject to, the terms hereof;
provided, however, that the Put Option may not be exercised if the Put Seller
has breached the requirements of Article 2 hereof for so long as such breach is
continuing.
SECTION 3.04 Put Price. The "Put Price" shall be the product of the (a)
the number of Put/Call Shares outstanding subject to the Put Option, multiplied
by (b) the Target Investment Value per Share. At the Put Closing, the Put Seller
will distribute to the Put Purchaser the Distributable Property-in-Kind.
SECTION 3.05 Put Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Put Option, shall take place at the principal
office of the Put Purchaser on a Business Day to be mutually agreed upon by the
Put Purchaser and Put Seller, which date shall be as soon as practicable after
receipt of the Put Notice (the "Put Closing"); provided, however, that if the
purchase of Put/Call Shares is subject to prior regulatory approval or requires
the determination of Fair Market Value, the parties will use their reasonable
best efforts to obtain the
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necessary regulatory approvals or determination of Fair Market Value and Put
Closing shall be postponed until the expiration of five (5) Business Days after
the later of (i) all such regulatory approvals shall have been received or (ii)
the determination of Fair Market Value. At the Put Closing, the Put Seller shall
deliver to the Put Purchaser (A) the certificates representing the Put/Call
Shares duly endorsed or accompanied by stock powers executed in blank, in form
and substance satisfactory to the Put Purchaser, together with all other
documents required to be executed in connection with the sale of the Put/Call
Shares and evidence satisfactory to the Put Purchaser that the Put/Call Shares
are being transferred free and clear of all liens and encumbrances created by
the Put Seller or its Affiliates, and (B) all Distributable Property-in-Kind (it
being understood that in no event shall a Put Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put Shares and Distributable
Property-in-Kind held by such Person, such title being free and clear of all
liens and encumbrances created by it or its Affiliates, and such Person's
authority, authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
(not including any governmental or regulatory consent or approval which shall
have been received)). At the Put Closing, the Put Purchaser shall pay the Put
Price by delivery of cash by wire transfer to the account of the Put Seller. At
the Put Closing, the Put Seller will transfer the Distributable Property-in-Kind
to the Put Purchaser.
SECTION 3.06 Assignment of Put Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to an Affiliate, including RNT, the
Company or a Permitted Transferee (the "Assignee"), in which event all
references to TSC shall be deemed to refer to any Assignee and such Assignee
shall be deemed a party to this Agreement. Notwithstanding an assignment of the
Put Option by TSC or its Permitted Transferee, TSC shall remain liable under
this Article III. The rights and obligations of the Put Seller under this
Article III are not assignable without the consent of TSC.
SECTION 3.07 RNT Obligation Under Put Option. RNT shall be jointly and
severally liable for all obligations of TSC under this Article III.
SECTION 3.08 Put Postponement. Notwithstanding anything herein to the
contrary, the Put Seller may not exercise the Put Option if prohibited from
doing so under Article II or applicable law, provided the Put Purchaser and Put
Seller, as applicable, shall take all reasonable steps to comply with such
applicable law.
SECTION 3.09 Exercise of Put Option Not a Transfer. Neither the
exercise by the Put Seller of the Put Option, nor the consummation of the
transaction contemplated thereby, shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
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ARTICLE IV
CALL RIGHTS
SECTION 4.01 Call Option. Subject to Section 2.04 (other than
subsection 2.04(b)), TSC or its Assignee (in either case, the "Call Purchaser")
has the right, at its sole option, to cause National Union and its Permitted
Transferees, if any (collectively the "Call Seller") to sell (the "Call Option")
to TSC or its Assignee all (but not less than all) of the Put/Call Shares held
by the Call Seller as of the date notice is given pursuant to Section 4.03.
SECTION 4.02 Call Period. The "Call Period" shall be the period
commencing on the third anniversary of the Closing and ending on the sixth
anniversary of the Closing. In addition, a Call Period shall also commence on
the occurrence of a Call Event and shall continue for ninety (90) days
thereafter.
SECTION 4.03 Call Notice. A Call Purchaser shall exercise its Call
Option by delivery of written notice to the Call Seller during the Call Period.
Upon receipt of a Call Notice in accordance with the terms hereof, the Call
Seller shall be obligated to sell all of its or their Put/Call Shares free and
clear of all liens and encumbrances created by it or its Affiliates (other than
pursuant to this Agreement) and the Call Purchaser shall be obligated to
purchase all of its or their Put/Call Shares at the Call Price in accordance
with, and subject to, the terms hereof.
SECTION 4.04 Call Price. The "Call Price" for the Put/Call Shares shall
be the product of the (a) the number of Put/Call Shares outstanding and subject
to the Call Option, multiplied by (b) the Target Investment Value per Share. At
the Call Closing, the Call Seller with distribute to the Call Purchaser the
Distributable Property-in-Kind.
SECTION 4.05 Call Closing. The closing of the purchase and sale of
Put/Call Shares pursuant to the Call Option, shall take place at the principal
office of the Call Purchaser on a Business Day to be mutually agreed upon by the
Call Purchaser and the Call Seller, which date shall be as soon as practicable
days after receipt of the Call Notice (the "Call Closing"); provided, however,
that if the purchase of Put/Call Shares is subject to prior regulatory approval
or requires the determination of Fair Market Value, the parties will use their
reasonable best efforts to obtain the necessary regulatory approvals or
determination of Fair Market Value and the Call Closing shall be postponed until
the expiration of five (5) Business Days after the later of (i) all such
regulatory approvals shall have been received or (ii) the determination of Fair
Market Value. At the Call Closing, the Call Seller shall deliver to the Call
Purchaser (A) the certificates representing the Put/Call Shares duly endorsed or
accompanied by stock powers executed in blank, in form and substance
satisfactory to the Call Purchaser, together with all other documents required
to be executed in connection with the sale of the Put/Call Shares and evidence
satisfactory to the Call Purchaser that the Put/Call Shares are being
transferred free and clear of all liens and encumbrances created by the Call
Seller or its Affiliates, and (B) all Distributable Property-on-Kind (it being
understood that in no event shall a Call Seller be obligated to make any
representations and warranties, or to provide any indemnities, with respect to
any matters other than title to the Put/Call Shares and Distributable
Property-in-Kind held by such Person, such title being free and clear of all
liens and encumbrances created by it or its Affiliates, and such Person's
authority, authorization and right to enter into and consummate the
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sale without contravention of any law or agreement, and without the need for any
third party (not including any governmental or regulatory consent or approval
which shall have been received)). At the Call Closing, the Call Purchaser shall
pay the Call Price by delivery of cash by wire transfer to the account of the
Call Seller. At the Call Closing, the Call Seller will transfer the
Distributable Property-in-Kind to the Call Purchaser.
SECTION 4.06 Assignment of Call Option. TSC may assign its rights and
obligations to purchase the Put/Call Shares to any Permitted Transferee and,
with the consent of National Union to such transfer of the Call Option in
writing (which such consent shall be in the sole discretion of National Union
and may be granted or withheld for any reason or no reason), to any other
assignee.
SECTION 4.07 Call Postponement. Notwithstanding anything herein to the
contrary, the Call Purchaser may not exercise the Call Option if prohibited from
doing so under applicable law, provided the Call Purchaser and Call Seller, as
applicable, shall take all reasonable steps to comply with such applicable law.
SECTION 4.08 Exercise of Call Option Not a Transfer. Neither the
exercise by the Call Purchaser of the Call Option, nor the consummation of the
transaction contemplated thereby shall constitute a Transfer that is subject to
the right of first refusal set forth in Article V or that is subject to the
tag-along rights set forth in Article VI.
ARTICLE V
RIGHTS OF FIRST REFUSAL
SECTION 5.01 Right of First Refusal on Transfers.
(a) Only National Union, TSC and their respective Permitted
Transferees shall have any rights and obligations under this Article V (each a
"Selling Holder"). Subject to Sections 2.04, 5.04 and 5.05, if any Selling
Holder desires to Transfer all or any part of the ROFR Shares owned by it
pursuant to a bona fide offer from a third party (the "Proposed Transferee"),
the Selling Shareholder shall submit a written offer (the "Offer") to sell such
shares (the "Offered Shares") on terms and conditions, including price, not less
favorable than those on which the Selling Shareholder proposes to sell such
Offered Shares to the Proposed Transferee to TSC and its Permitted Transferees
(if the Selling Holder is National Union or its Permitted Transferees) or to
National Union and its Permitted Transferees (if the Selling Holder is TSC, RNT
or their Permitted Transferees); in either case, the parties to whom the Selling
Holders offer their shares are referred to in this Article V as the "Offerees".
(b) The rights of TSC or its Permitted Transferees, on the one
hand, and National Union and its Permitted Transferees, on the other hand, under
this Article V shall be in addition to and not in substitution of their
respective rights under the Put Option or Call Option, as the case may be, in
their discretion.
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(c) So long as the Put Option and Call Option shall remain in
effect, any Put/Call Shares not otherwise Transferred as permitted under Section
2.03, Article V or Article VI shall continue to be subject to Articles III and
IV, as the case may be.
(d) The Offer shall disclose the identity of the Proposed
Transferee, the number of Offered Shares proposed to be sold, the total number
of ROFR Shares owned by the Selling Shareholder, the terms and conditions
(including price) of the proposed sale, and any other material facts relating to
the proposed sale. The Offer shall further state that the Offerees may acquire,
in accordance with the provisions of this Agreement, the Offered Shares for the
price and upon the other terms and conditions, including deferred payment (if
applicable), set forth therein.
SECTION 5.02 Notice of Intent to Purchase. If an Offeree desires to
purchase the Offered Shares offered to it, it shall communicate in writing its
election to purchase to the Selling Shareholder and each other Offeree within
fifteen (15) days of the date of the Offer (each party providing such notice, a
"Purchasing Shareholder") . A Purchasing Shareholder may also, but shall not be
required to, state that it is exercising an over-allotment right (the
"Over-Allotment Right") and the number of Shares it is willing to acquire
pursuant to such right; if any Offeree does not exercise its right of first
refusal pursuant to Section 5.01(a)(i), such Shares shall be allocated pro rata
among the Purchasing Shareholders exercising the Over-Allotment Right up to the
maximum amount stated in such Purchasing Shareholder's notices. Such
communication shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, binding and enforceable agreement for the sale and purchase
of the Offered Shares.
SECTION 5.03 Offered Shares Closing. The closing of the purchase and
sale of Offered Shares pursuant to the Offer, shall take place at the principal
office of the Selling Shareholder on a Business Day to be mutually agreed to by
the Selling Shareholders and the Purchasing Shareholders (the "Offered Shares
Closing"), provided that if the purchase of Offered Shares is subject to prior
regulatory approval, the parties will use their reasonable best efforts to
obtain the necessary regulatory approvals and the Offered Shares Closing shall
be postponed until the expiration of five (5) Business Days after all such
regulatory approvals shall have been received. At the Offered Shares Closing,
the Selling Shareholder shall deliver to the Purchasing Shareholder(s) the
certificates representing the Offered Shares duly endorsed or accompanied by
stock powers executed in blank, in form and substance satisfactory to the
Purchasing Shareholder(s), together with all other documents required to be
executed in connection with the sale of the Offered Shares and evidence
satisfactory to the Purchasing Shareholder(s) that the Offered Shares are being
transferred free and clear of all liens and encumbrances created by the Selling
Shareholder or its Affiliates (it being understood that in no event shall a
Selling Shareholder be obligated to make any representations and warranties, or
to provide any indemnities, with respect to any matters other than title to the
Offered Shares held by such Person, such title being free and clear of all liens
and encumbrances created by it or its Affiliates, and such Person's authority,
authorization and right to enter into and consummate the sale without
contravention of any law or agreement, and without the need for any third party
(not including any governmental or regulatory consent or approval which shall
have been received)). At the Offered Shares Closing a Purchasing Shareholder
shall pay the purchase price for the Offered Shares in such amount and on such
payment terms as set forth in the Offer.
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SECTION 5.04 Sale to Third Party. If the Shareholders do not purchase
all of the Offered Shares, the Offered Shares not so purchased may be sold by
the Selling Shareholder at any time within sixty (60) days after the date the
Offer was made. Any such sale shall be to the Proposed Transferee at not less
than the price and upon other terms and conditions not more favorable to the
Proposed Transferee than those specified in the Offer. If any Offered Shares are
not sold within the sixty (60)-day period or if the terms of the Offer shall
change, the Offered Shares shall be subject to renewed compliance with the
requirements of the right of first refusal pursuant to Section 5.01. Any third
party to whom Shares are sold shall become a Co-Investor and shall have no
rights or obligations under this Agreement except as provided in Sections
2.02(i), 2.03(b), 2.04 and 2.05, provided, however, that if (x) the Transfer to
a Co-Investor is a Transfer by National Union or its Permitted Transferee of
Put/Call Shares and if the price to be paid equals or exceeds the Target
Investment Value per Share (using the Call Rate as the discount rate) as of the
date set for payment, then the Put/Call Shares so Transferred shall continue to
be subject to the Call Option and the purchasing Co-Investor shall execute such
documents as are reasonably requested by TSC or its Assignee as to the existence
and enforceability of the Call Option, and (y) if the Transfer to a Co-Investor
is a Transfer by National Union or its Permitted Transferee of Put/Call Shares
and if RNT consents to such Transfer and the continuation of the Put Option and
the Call Option in writing (which such consent shall be in the sole discretion
of RNT and may be granted or withheld for any reason or no reason), then the
Put/Call Shares so Transferred shall continue to be subject to the Put Option
and the Call Option.
SECTION 5.05 Limitation as to National Union. The rights and
obligations set forth in this Article V shall not apply to any Shares purchased
by National Union other than the Put/Call Shares.
ARTICLE VI
TAG-ALONG RIGHTS
SECTION 6.01 Tag-Along Option. Subject to Sections 2.04 and 6.03 of
this Agreement, if a Shareholder (a "Disposing Shareholder") (i) decides to sell
Shares and (ii) either (x) any one or more of the other Shareholders have not
exercised their right of first refusal as provided in Article V and purchased
the Offered Shares or (y) the Shares in question are not subject to Article V,
the Disposing Shareholder will cause the intended purchaser of such Disposing
Shareholder's Shares to afford to each party hereto that is a Shareholder for
purposes of this Article VI (each, a "Non-Exercising Shareholder"), at its
option, the opportunity to sell (and will require the prospective purchaser to
purchase) the Shares held by such remaining Shareholders in the same proportion
to the number of shares sought to be disposed of by the Disposing Shareholder
and Non-Exercising Shareholders and on the same terms and conditions as those to
be sold by the Disposing Shareholder, and for the same consideration per share.
The Disposing Shareholder's obligation to afford the Non-Exercising
Shareholders, or cause the Non-Exercising Shareholders to be afforded, the
opportunity and rights set forth in this Article VI, shall be discharged if the
Non-Exercising Shareholders are given written notice which allows such
Shareholder thirty (30) days to elect to avail themselves of such rights by
written notice to the Disposing Shareholder. If any Non-Exercising Shareholder
elects to not participate or
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otherwise does not affirmatively respond within such thirty (30) day period, the
Disposing Shareholders and such Non-Exercising Shareholders who have made an
affirmative election to sell their Shares may proceed with the sale, without
regard to the application of this Article VI to the non-electing remaining
Shareholder(s).
SECTION 6.02 Sale to Third Party. Any such sales shall be at not less
than the price and upon other terms and conditions not more favorable than those
specified in the Offer. If any such Shares are not sold within a sixty (60)-day
period from the date of the Offer, or if the terms of the Offer shall change,
the Shares shall be subject to the requirements of the tag-along right pursuant
to Section 6.01. Any third party to whom Shares are sold shall become a
Co-Investor and shall have no rights or obligations hereunder except as provided
in Sections 2.02(i), 2.03(b), 2.04 and 2.05, provided, however, that if the sale
to a third party is a sale by National Union or its Permitted Transferee of
Put/Call Shares and if the price per share to be paid exceeds the Target
Investment Value per Share (using the Call Rate as the discount rate), then the
Put/Call Shares so Transferred shall continue to be subject to the Call Option
and the purchasing Co-Investor shall execute such documents as are reasonably
requested by TSC or its Assignee as to the existence and enforceability of the
Call Option.
SECTION 6.03 Limitation as to National Union. The rights and
obligations set forth in this Article VI shall not apply to any Shares purchased
by National Union other than the Put/Call Shares.
ARTICLE VII
THE COMPANY'S BOARD OF DIRECTORS; PUBLICITY
SECTION 7.01 Nominees. Each of the Shareholders (together with its
Permitted Transferees) identified below shall have the right to designate one
person to be elected to the Board of Directors of the Company, which designee
the Company shall nominate for director in accordance with its Charter and
By-Laws as follows:
(i) National Union and its Permitted Transferees, if any,
shall collectively be entitled to nominate one (1) person for election
by the Board of Directors and the Board of Directors of the Company
shall appoint such nominee to fill a vacancy on the Board of Directors
at Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by National Union or
its Permitted Transferee as a director of the Company for reelection as
a Class __ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election, and
each time members of such Class stand for election thereafter subject
to the terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(i) shall terminate at such time as National Union and
its Permitted Transferees collectively cease to hold at least 25% of
the Shares National Union acquired at Closing; and
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(ii) O&G and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall
appoint such nominee to fill a vacancy on the Board of Directors at
Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by O&G or its
Permitted Transferee as a director of the Company for reelection as a
Class __ director and shall be submitted to the Board of Directors of
the Company; the person nominated by O&G or its Permitted Transferee
shall be nominated by the Board of Directors of the Company as a
Class__ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election (or,
in case there is an earlier vacancy among the Company's directors of
any Class, and each time members of such Class stand for election
thereafter subject to the terms hereof; the right to designate a
director pursuant to this Section 7.01(a)(ii) shall terminate at such
time as O&G and its Permitted Transferees collectively cease to hold at
least 25% of the Shares O&G acquired at Closing;
(iii) TSC and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and
acknowledge that RNT shall be deemed the designee of TSC; RNT or such
other person as may be designated by TSC shall be submitted for
election by shareholders as part of the management slate each time
members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(iii) shall terminate at such time as TSC and its
Permitted Transferees collectively cease to hold at least 25% of the
Shares they acquired at Closing; and
(iv) PB Capital and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election to the
Board of Directors of the Company; the parties hereto agree and
acknowledge that Xxxxxxx XxXxxxxx ("XxXxxxxx") shall be deemed the
designee of PB Capital as of the date of this Agreement; XxXxxxxx or
such other person as may be designated by PB Capital shall be submitted
for election by shareholders as part of the management slate each time
members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(iv) shall terminate at such time as PB Capital and its
Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company; and
(v) ULLICO and its Permitted Transferees, if any, shall
collectively be entitled to nominate one (1) person for election by the
Board of Directors and the Board of Directors of the Company shall
appoint such nominee to fill a vacancy on the Board of Directors at
Closing. Thereafter, the Board of Directors of the Company shall
nominate the person nominated, from time to time, by ULLICO and its
Permitted Transferees as a director of the Company for reelection as a
Class __ director and such nominee shall be submitted for election by
shareholders as soon as members of such Class stand for election, and
each
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time members of such Class stand for election thereafter subject to the
terms hereof; the right to designate a director pursuant to this
Section 7.01(a)(v) shall terminate at such time as ULLICO and its
Permitted Transferees collectively cease to hold at least 5% of the
outstanding shares of Common Stock of the Company.
(b) The Company shall use its best efforts to cause each
nominee described in clause (a) of this Section 7.01 to be nominated to the
Board by the directors of the Company as part of the management slate and to be
submitted to the shareholders of the Company for election at each annual or
special meeting of the shareholders convened for that purpose so long as each of
them has the right to nominate a director in accordance with this Section 7.01.
SECTION 7.02 Voting for Election of Directors. Each of the
Shareholders, their respective Permitted Transferees and Co-Investors agree to
vote all shares of capital stock of the Company then owned by it to elect to the
Board of Directors of the Company any person entitled to be nominated by any of
the other Shareholders (or their respective Permitted Transferees) pursuant to
Section 7.01.
SECTION 7.03 Vacancy; Removal. Each Person who nominates a director of
the Company pursuant to Section 7.01 shall have the right to cause that person
to resign as a director of the Company. Any vacancy on the Board of Directors of
the Company created by the resignation, removal, incapacity or death of any
person nominated under this Article VII shall be filled by another person
nominated by the party who nominated the director creating such vacancy or by
such party's successors and assigns. The Shareholders agree to vote their
respective shares of Common Stock in accordance with such new designation, and
any such vacancy shall not be filed in the absence of a new nomination in
accordance with the foregoing sentence.
SECTION 7.04 Continuation as Director. Upon the occurrence of any event
that results in a Shareholder no longer being entitled to nominate a director
under Section 7.01, the Person so nominated shall continue as a director of the
Company until his successor is nominated, elected and qualifies.
SECTION 7.05 Publicity. To the extent that any of the Company or any
Shareholder intends to issue any press release or make any similar public
announcement or communication regarding the execution or performance of this
Agreement or the other Transaction Documents, the transactions contemplated
hereby and thereby, and the ongoing business relationship between the parties,
which release, announcement or disclosure mentions any of such parties, the
party making the disclosure shall consult with each of the parties so named in
such disclosure; provided, however, that no party shall be restrained, after
consultation with the other parties, to the extent such consultation is
feasible, from making such disclosure as it shall be required to make by
applicable law or by applicable regulations of any regulatory body or securities
exchange.
SECTION 7.06 Observer Rights for Shareholder Designee. The Company
shall, for so long as PB Capital and its Affiliates own or control at least 2.5%
of the outstanding shares
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of Common Stock, permit one (1) individual designated by PB Capital and
acceptable to the Company to attend and observe meetings of the Board. The
Company shall, for so long as ULLICO and its Affiliates own or control at least
2.5% of the outstanding shares of Common Stock, permit one (1) individual
designated by ULLICO and acceptable to the Company to attend and observe
meetings of the Board. Each designee described in the preceding two sentences
shall have the right to receive timely notices of each meeting of the Board of
Directors and all written information provided by the Company to the Board. Such
designee shall have no right to vote on any matter presented to the Board, but
otherwise shall have all rights of a Director, including: (a) the right to
examine books and records of the Company; (b) the right to review and
participate in all discussions of the Board including, without limitation,
capital or equity programs; (c) the right to receive, upon request, any
information relating to the Company, and to any Affiliates thereof; and (d) the
right to meet on a regular basis with the management of the Company, or any
Affiliates thereof; provided that any such designee shall agree to be bound by
all policies relating to confidentiality and material non-public information
which are applicable to the Directors and senior executive officers of the
Company.
SECTION 7.07 Subscription Rights.
(a) If the Board of Directors of the Company shall authorize
the issuance of New Securities, then, prior to each such issuance of New
Securities, the Company shall offer to each Shareholder and its Permitted
Transferees a Pro Rata Share of such New Securities.
(b) Any offer of New Securities made to any Shareholder or
Permitted Transferee under this Section 7.07 shall be made by notice in writing
(the "Subscription Notice") at least ten (10) Business Days prior to the date on
which the meeting of the Board is held to authorize the issuance of such New
Securities. The Subscription Notice shall set forth (i) the number of New
Securities proposed to be issued and the terms of such New Securities, (ii) the
consideration (or manner of determining the consideration), if any, for which
such New Securities are proposed to be issued and the terms of payment, (iii)
the number of New Securities offered to each Shareholder and Permitted
Transferee in compliance with the provisions of this Section 7.07 and (iv) the
proposed date of issuance of such New Securities. Not later than twenty (20)
Business Days after its receipt of a Subscription Notice, each Shareholder and
Permitted Transferee shall notify the Company in writing whether it elects to
purchase all or any portion of the New Securities offered to it pursuant to the
Subscription Notice. If a Shareholder or Permitted Transferee shall elect to
purchase any such New Securities, the New Securities which it shall have elected
to purchase shall be issued and sold to such person by the Company at the same
time and on the same terms and conditions as the New Securities are issued and
sold to third parties. If, for any reason, the issuance of New Securities to
third parties is not consummated, the right of the Shareholders and Permitted
Transferees to their respective Pro Rata Shares of such issuance shall lapse,
subject to their ongoing subscription right with respect to issuances of New
Securities at later dates or times.
(c) The Company represents and covenants to each Shareholder
and Permitted Transferee that (i) upon issuance, all the shares of New
Securities sold to such person pursuant to this Section 7.07 shall be duly
authorized, validly issued, fully paid and nonassessable and will be approved
(if outstanding securities of the Company of the same type
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are at the time already approved) for listing on the American Stock Exchange or
for quotation or listing on the principal trading market for the securities of
the Company at the time of issuance, (ii) upon delivery of such shares, they
shall be free and clear of all claims, Liens, encumbrances, security interests
and charges of any nature and shall not be subject to any preemptive right of
any stockholder of the Company and (iii) in connection with any such issuance,
the Company shall take such actions as are specified in Section 3.01(q) of the
Securities Purchase Agreement with respect to such shares.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Injunctive Relief. The parties hereto acknowledge and
agree that it will be impossible to measure the damages that would be suffered
if any party fails to comply with the provisions of this Agreement that it is
required to comply with and, in the event of any such failure, the non-breaching
parties will have the right to obtain specific performance of the breaching
party's obligations under this Agreement and to obtain immediate injunctive
relief. These rights shall be in addition to, and not in substitution of, any
other rights that any non-breaching party may have in law or in equity.
SECTION 8.02 Entire Agreement. Each party expressly acknowledges and
agrees that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Registration Rights Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section 13 (d) of the Exchange
Act), or otherwise act together, with respect to the Company or its securities.
SECTION 8.03 Binding Effect; Benefit. This Agreement shall inure to the
benefit and be binding upon the parties hereto and their Permitted Transferees,
Co-Investors and assignees to the extent set forth in this Agreement; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives. Nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto and their
Permitted Transferees, Co-Investors and assignees; and, in the case of a natural
person, upon his successors, assigns, heirs, legatees, distributees, estates,
executors, administrators, personal representatives and other legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement. Nothing in this Agreement, expressed or implied, shall
confer on any party or Permitted Transferee, Co-Investor and assignee; and, in
the case of a natural person, upon his successors, assigns, heirs, legatees,
distributees, estates, executors, administrators, personal representatives and
other legal representatives, any greater rights, remedies, obligations or
liabilities than as set forth in this Agreement.
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SECTION 8.04 Assignability. Except as set forth in this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any party hereto or their
Permitted Transferees or assignees.
SECTION 8.05 Amendment; Waiver; Termination. No provision of this
Agreement may be waived except by an instrument in writing signed by the party
against whom the waiver is to be effective. No provision of this Agreement may
be amended or modified except by an instrument in writing signed by all of the
parties who would have any rights or obligations under the relevant provision
the Agreement. This Agreement shall terminate on the earlier of (i) the date
that National Union or its Permitted Transferee shall no longer Beneficially Own
any Put/Call Shares, or (ii) the sixth anniversary of the Closing.
SECTION 8.06 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
TSC and RNT:
Xxxxx-Xxxxxx Corp.
00000 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Tutor
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
National Union:
c/o AIG Global Investment Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxx
Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
American International Group, Inc.
Law Department
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
O&G:
O&G Industries, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Murtha, Cullina, Xxxxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
City Place I
Hartford, Connecticut 06103-3469
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
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XXXX:
XXXX Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
PB Capital:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
The Common Fund:
x/x XXXX Xxxxxxx Xxxxxxxx, X.X.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
ULLICO:
The Union Labor Life Insurance Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 2001
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 8.07 Fees and Expenses. Each party shall pay its own fees and
expenses (including fees, expenses and disbursements of counsel) in connection
with this Agreement and the performance of each parties rights, remedies and
obligations hereunder.
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SECTION 8.08 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 8.09 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
SECTION 8.10 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York. Each of the parties hereto irrevocably submits to
the personal exclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each of the parties further agree that service of any process, summons, notice
or document hand delivered or sent by registered mail to such party's respective
address set forth in Section 8.06 will be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction as set forth in the immediately preceding
sentence. Each of the parties hereto irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in such
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum.
SECTION 8.11 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential, punitive or exemplary damages in respect of this
Agreement under any circumstances or for any reason. Consequential damages are,
without limitation, lost profits, lost revenue and the like but do not include
the actual costs incurred in obtaining substitute performance where there has
been a failure to perform an obligation under any provision of this Agreement.
SECTION 8.12 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 8.13 Amendments to Laws. Any reference to a section, form, rule
or regulation of the Securities Act, the Exchange Act or the Code, includes any
successor section, form, rule, regulation or law.
SECTION 8.14 No Third Party Beneficiaries. Nothing contained in this
Agreement is intended to confer upon any person or entity other than the parties
hereto and their respective successors and permitted assigns, any benefit, right
or remedies under or by reason of this Agreement.
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SECTION 8.15 Mutual Drafting. This Agreement is the mutual product of
the parties hereto, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of each of the parties, and shall not be
construed for or against any party hereto.
SECTION 8.16 Further Representations. Each party to this Agreement
acknowledges and represents that it has been represented by its own legal
counsel in connection with the transactions contemplated by this Agreement, with
the opportunity to seek advice as to its legal rights from such counsel. Each
party further represents that it is being independently advised as to the tax
consequences of the transactions contemplated by this Agreement and is not
relying on any representation or statements made by any other party as to such
tax consequences.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by himself or its authorized officer as of the day and year first
above written.
PERINI CORPORATION
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:____________________________
Name:__________________________
Title:_________________________
XXXXX-XXXXXX CORPORATION
By:____________________________
Name: Xxxxxx X. Tutor
Title: President and Chief Executive Officer
_______________________________
Xxxxxx X. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:_____________________________
Name:___________________________
Title:__________________________
O&G INDUSTRIES, INC.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:_____________________________
Name:___________________________
Title:__________________________
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XXXX CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: ________________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General Counsel and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: XXXX Capital Partners, L.P.,
its general partner
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: ____________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT ORGANIZATIONS
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: XXXX Capital Partners, L.P., its investment
advisor
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: ____________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General Counsel and
Secretary
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THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE ACCOUNT P
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By:_________________________
Name:_______________________
Title:______________________
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