EXHIBIT 6.3
FORM OF SECURITYHOLDERS AGREEMENT
AGREEMENT dated as of __________ 199_ among PERINI CORPORATION, a
Massachusetts corporation (together with its successors, the "Company"), PB
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Capital Partners, L.P., a Delaware limited partnership, Separate Account P, an
account maintained by ULOCO, Inc., a ______________ corporation, The Common
Fund for Non-Profit Organizations, a New York corporation (collectively, the
"Series B Shareholders") and the holders of certain warrants to purchase shares
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of common stock of the Company listed on the signature pages hereof
(collectively, the "Initial Warrantholders").
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WHEREAS, in accordance with the terms and conditions of the Amended
and Restated Credit Agreement dated as ___________ __, 1996 among the Company,
the Initial Warrantholders and Xxxxxx Guaranty Trust Company of New York, as
Agent, the Company has agreed to issue the Warrants (as defined therein) to the
lnitial Warrantholders;
WHEREAS, the Company has agreed to provide the Initial Warrantholders
certain registration rights as set forth in the Warrantholders Rights Agreement
dated as of ________ __, 199_ (as amended, the "Warrantholders Rights
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Agreement") among the Company and the Initial Warrantholders;
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WHEREAS, in accordance with the terms and conditions of the Stock
Purchase and Sale Agreement dated as of July 24, 1996, as amended, among Xxxxxxx
X. Xxxx & Associates, L.P., PB Capital Partners, L.P. and the Company, the
Series B Shareholders have agreed to acquire certain shares of Series B
Cumulative Convertible Preferred Stock of the Company; and
WHEREAS, the Company has agreed to provide the Series B Shareholders
certain registration rights as set forth in the Registration Rights Agreement
dated as of _________ __, 199_ among the Company and the Series B Shareholders;
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms defined in the
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Warrantholders Rights Agreement and not otherwise defined herein have, as used
herein, the respective meanings provided for therein. The following additional
terms, as used herein, have the following respective meanings:
"Conversion Shares" means (i) any Series B Shares, (ii) any shares of
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Common Stock or other securities issued or issuable upon the conversion of any
Series B Shares and (iii) any securities issued or issuable with respect to any
of such shares or other securities referred to in clause (i) or (ii) upon the
conversion thereof into other securities or by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise; provided that any of such
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securities shall cease to be Conversion Shares when such securities shall have
(x) been disposed of pursuant to a Public Sale or (y) ceased to be outstanding.
"Series B Shares" means shares of Series B Cumulative Convertible
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Preferred Stock of the Company.
ARTICLE II
SECURITYHOLDERS AGREEMENT
SECTION 2.01. Series B Lockup Periods.
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(a) Each Warrant Securityholder who intends to distribute Registrable
Securities in an Underwritten Offering under a Shelf Registration pursuant to
Section 3.1(d) of the Warrantholders Rights Agreement and who desires to require
the holders of Conversion Shares to become subject to a Series B Lockup Period
in accordance with Section 2.01(b) shall, at the same time it gives written
notice to the Company pursuant to Section 3.1(d) of the Warrantholders Rights
Agreement, send a copy of such written notice to each holder of Conversion
Shares (each such notice, a "Series B Lockup Notice"). The Company agrees to
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provide a list of all holders of Conversion Shares promptly to any Warrant
Securityholder who at any time requests such a list.
(b) Subject to Section 2.01(c), each Series B Shareholder, and each
other holder of Conversion Shares who agrees to be bound by (and entitled to the
benefits of) this Agreement in accordance with Section 2.03, agrees that if it
receives a Series B Lockup Notice, then except to the extent otherwise permitted
by the
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managing underwriter of the proposed Underwritten Offering, it shall not sell,
make any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of or otherwise dispose of any Conversion Shares or
any other equity securities of the Company or securities convertible into or
exchangeable or exercisable for any of such securities during the period (each,
a "Series B Lockup Period") beginning on the pricing date for the Underwritten
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Offering until the earlier of (i) the date that is 90 days after such pricing
date and (ii) the date when such Warrant Securityholder shall have completed its
sale of Registrable Securities under the Shelf Registration (as such Warrant
Securityholder or managing underwriter shall advise such holder of Conversion
Shares).
(c) The parties hereto agree that (i) no Series B Lockup Period shall
commence prior to the expiration of a period of 90 days after the last day of
any prior Series B Lockup Period (ii) there shall be no more than one Series B
Lockup Period during any period of twelve consecutive calendar months and (iii)
there shall be no more than two Series B Lockup Periods in total.
SECTION 2.02. Opportunity for the Company and Holders of Conversion
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Shares to Participate in Underwritten Offerings. If one or more Warrant
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Securityholders gives a written notice to the Company of an intended
distribution of Registrable Securities in an Underwritten Offering under a Shelf
Registration pursuant to Section 3.1(d) of the Warrantholders Rights Agreement
and if the managing underwriter for such Underwritten Offering advises such
Warrant Securityholders that, in its opinion, more Registrable Securities could
be sold in such Underwritten Offering than the number proposed to be sold by
such Warrant Securityholders (within a price range acceptable to such Warrant
Securityholders), then the Company and the holders of Conversion Shares shall be
entitled to include in such Underwritten Offering an aggregate number of shares
equal to such excess, to he allocated 50% to the shares proposed to be sold by
the Company and 50% to the shares proposed to be sold by holders of Conversion
Shares (or such other allocation as shall be mutually agreed between the Company
and such holders of Conversion Shares); provided that the Company and any holder
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of Conversion Shares shall he entitled to include such shares in the
Underwritten Offering only if (i) it shall not cause any delay in the
commencement of the Selling Period for such Warrant Securityholders and (ii) in
the case of any holder of Conversion Shares, such holder shall have given prompt
notice to the Company and the managing underwriter, which notice shall include
any information with respect to such holder required to amend or supplement the
Registration Statement for the Underwritten Offering.
SECTION 2.03. Holders of Conversion Shares to be Bound by this
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Agreement. Each Series B Shareholder, on behalf of itself and each subsequent
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holder of Conversion Shares, agrees that it shall not transfer any Conversion
Shares to any Person, other than pursuant to a Public Sale, unless such Person
shall have agreed in a writing for the benefit of the parties hereto that such
Person, as a holder
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of Conversion Shares, shall be bound by and be entitled to the benefits of all
of the provisions of this Agreement applicable to holders of Conversion Shares
(and upon such agreement such Person shall be entitled to such benefits).
SECTION 2.04. Warrant Share Lockup Periods.
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(a) Each holder of Conversion Shares who intends to distribute
Registrable Securities in an Underwritten Offering under a Shelf Registration
pursuant to Section 2.1(d) of the Registration Rights Agreement and who desires
to require the Warrant Securityholders to become subject to a Warrant Share
Lockup Period in accordance with Section 2.04(b) shall, at the same time it
gives written notice to the Company pursuant to Section 2.1(d) of the
Registration Rights Agreement, send a copy of such written notice to each
Warrant Securityholder (each such notice, a "Warrant Share Lockup Notice"). The
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Company agrees to provide a list of all Warrant Securityholders promptly to any
holder of Conversion Shares who at any time requests such a list.
(b) Subject to Section 2.04(c), each Initial Warrantholder, and each
other Warrant Securityholder who agrees to be bound by (and entitled to the
benefits of) this Agreement in accordance with Section 2.06, agrees that if it
receives a Warrant Share Lockup Notice, then except to the extent otherwise
permitted by the managing underwriter of the proposed Underwritten Offering, it
shall not sell, make any short sale of, loan, grant any option for the purchase
of, effect any public sale or distribution of or otherwise dispose of any
Warrant Shares or any other equity securities of the Company or securities
convertible into or exchangeable or exercisable for any of such securities
during the period (each, a "Warrant Share Lockup Period") beginning on the
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pricing date for the Underwritten Offering until the earlier of (i) the date
that is 90 days after such pricing date and (ii) the date when such holder of
Conversion Shares shall have completed its sale of Registrable Securities under
the Shelf Registration (as such holder or managing underwriter shall advise such
Warrant Securityholder).
(c) The parties hereto agree that (i) no Warrant Share Lockup Period
shall commence prior to the expiration of a period of 90 days after the last day
of any prior Warrant Share Lockup Period (ii) there shall be no more than one
Warrant Share Lockup Period during any period of twelve consecutive calendar
months and (iii) there shall be no more than two Warrant Share Lockup Periods.
SECTION 2.05. Opportunity for the Company and Warrant Securityholders
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to Participate in Underwritten Offerings. If one or more holders of Conversion
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Shares gives a written notice to the Company of an intended distribution of
Registrable Securities in an Underwritten Offering under a Shelf Registration
pursuant to Section 2.1(d) of the Registration Rights Agreement, and if the
managing underwriter for such Underwritten Offering advises such holders of
Conversion
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Shares that, in its opinion, more Registrable Securities could be sold in such
Underwritten Offering than the number proposed to be sold by such holders
(within a price range acceptable to such holders), then the Company and the
Warrant Securityholders shall be entitled to include in such Underwritten
Offering an aggregate number of shares equal to such excess, to be allocated 50%
to the shares proposed to be sold by the Company and 50% to the shares proposed
to by sold by Warrant Securityholders (or such other allocation as shall be
mutually agreed between the Company and such Warrant Securityholders); provided
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that the Company and any Warrant Securityholders shall be entitled to include
such shares in the Underwritten Offering only if (i) it shall not cause any
delay in the commencement of the Selling Period for such holders of Conversion
Shares and (ii) in the ease of any Warrant Securityholder, such Warrant
Securityholder shall have given prompt notice to the Company and the managing
underwriter, which notice shall include any information with respect to such
Warrant Securityholder required to amend or supplement the Registration
Statement for the Underwritten Offering.
SECTION 2.06. Warrant Securityholders to be Bound by this Agreement.
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Each Initial Warrantholder, on behalf of itself and each subsequent Warrant
Securityholder, agrees that it shall not transfer any Warrant or Warrant Shares
to any Person, other than pursuant to a Public Sale, unless such Person shall
have agreed in a writing for the benefit of the parties hereto that such Person,
as a Warrant Securityholder, shall be bound by and be entitled to the benefits
of all of the provisions of this Agreement applicable to Warrant Securityholders
(and upon such agreement such Person shall be entitled to such benefits).
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Notices. All notices and other communications provided
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for hereunder shall be dated and in writing and shall be deemed to have been
given (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 3.01 and telephonic confirmation of
receipt thereof is obtained or (ii) if given by mail, prepaid overnight courier
or any other means, when received at the address specified in this Section 3.01
or when delivery at such address is refused. Such notices shall be addressed to
the appropriate party to the attention of the person who executed this Agreement
at the address or telecopy number set forth under such party's signature below
(or to the attention of such other person or to such other address or telecopy
number as such party shall have furnished to each other party in accordance with
this Section 3.01).
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SECTION 3.02. Binding Nature of Agreement. This Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
SECTION 3.03. Descriptive Headings. The descriptive headings of the
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several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 3.04. Specific Performance. Without limiting the rights of
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each party hereto to pursue all other legal and equitable rights available to
such party for the other parties' failure to perform their obligations under
this Agreement, the parties hereto acknowledge and agree that the remedy at law
for any failure to perform their obligations hereunder would be inadequate and
that each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 3.05. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
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ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH SUCH PARTY MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO IRREVOCABLY
CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION
3.01. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS
AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 3.06. WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY
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IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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SECTION 3.07. Counterparts. This Agreement may be executed
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simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 3.08. Severability. In the event that any one or more of the
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provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
SECTION 3.09. Entire Agreement. This Agreement is intended by the
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parties hereto as a final and complete expression of their agreement and
understanding in respect to the subject matter contained herein. This Agreement
supersedes all prior agreement and understandings, written or oral, between the
parties with respect to such subject matter.
SECTION 3.10. Amendment and Waiver. Any provision of this Agreement
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may be amended if, but only if, such amendment is in writing and is signed by
(i) the Company, (ii) holders owning, or having Series B Shares convertible
into, at least a majority of shares of Common Stock either issued or issuable
upon the conversion of all outstanding Series B Shares (provided that no such
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amendment may adversely affect the rights of any such holder unless signed by
such holder) and (iii) Holders owning, or having Warrants exercisable for, at
least a majority of shares of Common Stock either issued or issuable upon the
exercise of all outstanding Warrants (provided that no such amendment may
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adversely affect the rights of any Holder unless signed by such Holder). Any
provision may be waived if, but only if, such waiver is in writing and is signed
by the party or parties waiving such provision and for whose benefit such
provision is intended.
SECTION 3.11. No Third Party Beneficiaries. Nothing in this
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Agreement shall convey any rights upon any person or entity which is not a party
or an assignee of a party to this Agreement.
SECTION 3.12. Effectiveness. This Agreement shall become effective
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immediately at such time when (i) the Agent shall have received duly executed
counterparts hereof signed by the Company and each of the Banks (or, in the case
of any party as to which an executed counterpart thereof shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party) and (ii) the Effective Date under the Credit Agreement
shall occur.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
PERINI CORPORATION
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
Address for Notices:
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00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile number: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: ____________________________________
Name:
Title:
Address for Notices:
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00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile number: (000) 000-0000
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FLEET NATIONAL BANK
By: ____________________________________
Name:
Title:
Address for Notices:
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Mail Stop: RI OP T05A
00 Xxxxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000-0000
Facsimile number: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: ____________________________________
Name:
Title:
Address for Notices:
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000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile number: (000) 000-0000
BAYBANK. N.A.
By:_____________________________________
Name:
Title:
Address for Notices:
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c/o The First National Bank of Boston
Mail Stop 01-31-03
P.O. Box 2016
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile number: (000) 000-0000
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COMERICA BANK
By: ____________________________________
Name:
Title:
Address for Notices:
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One Detroit Center
5OO Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
XXXXXX TRUST & SAVINGS BANK
By: ____________________________________
Name:
Title:
Address for Notices:
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000 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
Facsimile number: (000) 000-0000
SSB INVESTMENTS. INC.
By: ____________________________________
Name:
Title:
Address for Notices:
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000 Xxxxxxxx
Xxxxxx, XX 00000-0000
Facsimile number: (000) 000-0000
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PB CAPITAL PARTNERS, L.P.
By: XXXXXXX X. XXXX & ASSOCIATES, L.P.,
its General Partner
By: XXXXXXX X. XXXX & ASSOCIATES, INC.,
its General Partners
By: __________________________________
Name:
Title:
Address for Notices:
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000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
SEPARATE ACCOUNT P
By: _________________________________________
Name:
Title:
Address for Notices:
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THE COMMON FUND FOR NON-PROFIT
CORPORATIONS
By: ___________________________
Name:
Title:
Address for Notices:
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