-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Awwj0MmS//PcLiU7+tRD0kgHt2DwGOSaQpTokzdqheAXOuJdx/cwc4oJFfIFa1iJ 2F7jAmAk3Z+EWofRGuqlNQ== 0000950133-96-002863.txt : 19961219 0000950133-96-002863.hdr.sgml : 19961219 ACCESSION NUMBER: 0000950133-96-002863 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19961218 SROS: NONE GROUP MEMBERS: PB CAPITAL PARTNERS L P GROUP MEMBERS: RICHARD C. BLUM GROUP MEMBERS: RICHARD C. BLUM & ASSOCIATES, INC. GROUP MEMBERS: RICHARD C. BLUM & ASSOCIATES, L.P. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PERINI CORP CENTRAL INDEX KEY: 0000077543 STANDARD INDUSTRIAL CLASSIFICATION: GENERAL BUILDING CONTRACTORS - NONRESIDENTIAL BUILDINGS [1540] IRS NUMBER: 041717070 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-08309 FILM NUMBER: 96682673 BUSINESS ADDRESS: STREET 1: 73 MT WAYTE AVE CITY: FRAMINGHAM STATE: MA ZIP: 01701 BUSINESS PHONE: 5086282000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: PB CAPITAL PARTNERS L P CENTRAL INDEX KEY: 0001019775 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 943248865 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 909 MONTGOMERY STREET SUITE 400 CITY: SAN FRANCISCO STATE: CA ZIP: 94133 BUSINESS PHONE: 4154341111 MAIL ADDRESS: STREET 1: 909 MONTGOMERY STREET SUITE 400 CITY: SAN FRANCISCO STATE: CA ZIP: 94133 SC 13D/A 1 SCHEDULE 13D (AMENDMENT 1) RE: PERINI CORPORATION. 1 ------------------------------- OMB APPROVAL ------------------------------- OMB Number: 3235-0145 Expires: December 31, 1997 Estimated average burden hours per response...14.90 ------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (AMENDMENT NO. 1) UNDER THE SECURITIES EXCHANGE ACT OF 1934 PERINI CORPORATION ------------------ (Name of Issuer) COMMON STOCK and SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK ----------------------------------------------- (Title of Class of Securities) 713839108 ------------------ (CUSIP Number) Eric R. Markus, Esq. Wilmer, Cutler & Pickering 2445 M Street, N.W. Washington, D.C. 20037 ---------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) (Date of Event which Requires Filing of this Statement) December 13, 1996 ----------------- If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box is a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7). NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 SCHEDULE 13D CUSIP NO. 713839108 PAGE 2 OF 10 PAGES ----------------- - ---------------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PB CAPITAL PARTNERS, L.P 94-3248865 - ---------------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]+ (b) [X]+ - ---------------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ---------------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ---------------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER - 0 - ----------------------------------------------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 92,350 (of Series B Shares) + OWNED BY ---------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON - 0 - WITH ---------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 92,350 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 92,350 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ] - ---------------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 61.51% (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - ----------------------------------------------------------------------------------------------------------------------------
+ See Item 5 below. *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 3 SCHEDULE 13D CUSIP NO. 713839108 PAGE 3 OF 10 PAGES ----------------- - ---------------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON RICHARD C. BLUM & ASSOCIATES, L.P., 94-3205364 - ---------------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]+ (b) [X]+ - ---------------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - ---------------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION California - ---------------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ----------------------------------------------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 115,650 (of Series B Shares) + OWNED BY ----------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH ----------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ] - ---------------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 77.0% (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN, IA - ----------------------------------------------------------------------------------------------------------------------------
+ See Item 5 below. *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 4 SCHEDULE 13D CUSIP NO. 713839108 PAGE 4 OF 10 PAGES ----------------- - ---------------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON RICHARD C. BLUM & ASSOCIATES, INC., 94-2967812 - ---------------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]+ (b) [X]+ - ---------------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - ---------------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION California - ---------------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ----------------------------------------------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 115,650 (of Series B Shares) + OWNED BY ----------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH ----------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ] - ---------------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 77.0% (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO - ----------------------------------------------------------------------------------------------------------------------------
+ See Item 5 below. *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 5 SCHEDULE 13D CUSIP NO. 713839108 PAGE 5 OF 10 PAGES ----------------- - ---------------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON RICHARD C. BLUM, ###-##-#### - ---------------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]+ (b) [X]+ - ---------------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - ---------------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* Not Applicable - ---------------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ---------------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - ---------------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER -0- ----------------------------------------------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 115,650 (of Series B Shares) + OWNED BY ----------------------------------------------------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON -0- WITH ----------------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 115,650 (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES SHARES* [ ] - ---------------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 77.0% (of Series B Shares) + - ---------------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ----------------------------------------------------------------------------------------------------------------------------
+ See Item 5 below. *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. 6 Page 6 of 12 Pages ITEM 1. SECURITY AND ISSUER. This Schedule 13D Amendment relates to the Series B Cumulative Convertible Preferred Stock (the "Series B Shares") of the Perini Corporation (the "Issuer") and the common stock of the Issuer into which such stock is convertible. As described more fully in Item 4 below, this Amendment is being filed because of the decision of PB Capital Partners, L.P., a Delaware limited partnership ("PB Capital"), to assign certain of its rights and obligations to acquire the Series B Shares to Union Labor Life Insurance Company Separate Account P ("Account P") and the approval thereof by the Issuer. ITEM 2. IDENTITY AND BACKGROUND. This Schedule 13D Amendment is filed by and on behalf of PB Capital, Richard C. Blum & Associates, L.P., a California limited partnership ("RCBA L.P."); Richard C. Blum & Associates, Inc., a California corporation ("RCBA Inc."); and Richard C. Blum, the Chairman and a substantial shareholder of RCBA Inc. (collectively the "Reporting Persons"). PB Capital is a limited partnership whose principal business is investing in securities and whose principal office is located at 909 Montgomery St., Suite 400, San Francisco, California 94133. RCBA L.P. is the sole general partner of PB Capital. RCBA L.P. is a California limited partnership whose principal business is acting as general partner for investment partnerships and providing investment advisory and financial consulting services. RCBA L.P. is a registered investment adviser with the Securities and Exchange Commission and with the State of California. The sole general partner of RCBA L.P. is RCBA Inc. The principal business office address of RCBA L.P. and RCBA Inc. is 909 Montgomery Street, Suite 400, San Francisco, California 94133. The names of the executive officers and directors of RCBA Inc., their addresses, citizenship and principal occupations are as follows:
Name and Office Held Business Address Citizenship Principal Occupation -------------------- ---------------- ----------- or Employment --------------- Richard C. Blum 909 Montgomery St. USA President and President, Chairman and Suite 400 Chairman of Director San Francisco, CA investment adviser Nils Colin Lind 909 Montgomery St. Norway Managing Director of Managing Director, Assistant Suite 400 investment adviser Secretary and Director San Francisco, CA Jeffrey W. Ubben 909 Montgomery St. USA Managing Director of Managing Director of Suite 400 investment adviser Investments San Francisco, CA Alexander L. Dean 909 Montgomery St. USA Managing Director of Managing Director of Suite 400 investment adviser Investments and Director San Francisco, CA Peter E. Rosenberg 909 Montgomery St. USA Managing Director of Managing Director of Suite 400 investment adviser Marketing and Director San Francisco, CA Michael Kane 909 Montgomery St. USA Managing Director of Managing Director of Suite 400 investment adviser Investments San Francisco, CA John H. Steinhart 909 Montgomery St. USA Managing Director of Managing Director, Chief Suite 400 investment adviser Administrative Officer, and San Francisco, CA Secretary George F. Hamel, Jr. 909 Montgomery St. USA Managing Director of Managing Director of Suite 400 investment adviser Marketing San Francisco, CA Marc Scholvinck 909 Montgomery St. USA Managing Director of Managing Director, Chief Suite 400 investment adviser Financial Officer, and San Francisco, CA Assistant Secretary Thomas L. Kempner 40 Wall Street USA Chairman, Loeb Director New York, NY Partners Corporation, Investment Banking Business
7 Page 7 of 12 Pages * * * To the best knowledge of the Reporting Persons, none of the entities or persons identified in this Item 2 has, during the past five years, been convicted of any criminal proceeding (excluding traffic violations or similar misdemeanors), nor been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. No change. ITEM 4. PURPOSE OF TRANSACTION. PB Capital and RCBA L.P. entered into a Stock Purchase and Sale Agreement with the Issuer on July 24, 1996 whereby PB Capital agreed to acquire the Series B Shares. The Stock Purchase and Sale Agreement with the Issuer was amended on November 8, 1996. A copy of the amendment is attached hereto as Exhibit 4.2. Among other things, the amendment granted PB Capital a right to assign its obligations to acquire a portion of the Series B Shares to financially-responsible third parties. PB Capital assigned its rights and obligations to acquire 34,500 shares of the Series B Shares to Account P pursuant to an assignment agreement between PB Capital and Account P (the "Assignment Agreement") on December 13, 1996, after a board meeting of the Issuer at which such assignment was approved by the Issuer. In addition, PB Capital presently intends to assign its rights and obligations to acquire 23,300 shares of the Series B Shares to an account that RCBA, LP manages (with full investment discretion) for The Common Fund for Non-Profit Organizations ("The Common Fund") or to transfer such shares to The Common Fund's account after the closing. The Reporting Persons are making this investment for investment purposes and, if the transaction is consummated, intend to participate actively in the direction of the Issuer. The consummation of the Stock Purchase and Sale Agreement pursuant to which this investment is to be made will lead to the addition to the Issuer's Board of Directors of three designees of the Reporting Persons, and membership of at least one of those three new directors on each of the Committees of the Board of Directors of the Issuer, except for the Executive Committee of the Board of Directors of the Issuer on which all of the new directors will serve. Also as reflected in Exhibits 4.1 and 4.2, consummation of the transaction will also lead to the amendment of the by-laws of the Issuer to provide that no action of the Board of Directors on certain matters be taken without the prior favorable recommendation of the Executive Committee and that the Executive Committee will oversee the chief executive officer of the Issuer. Finally, consummation of the transactions contemplated by the Stock Purchase and Sale Agreement, as amended, will lead to a management agreement (the "Management Agreement"), included as part of Exhibit 4.2, between the Issuer and Tutor-Saliba Corporation, a current holder of approximately 7.24% of the common stock of the Issuer, by which Tutor-Saliba will supply the services of Ronald Tutor ("Tutor") to serve as acting chief operating officer of the Issuer. The consummation of the Stock Purchase and Sale Agreement is subject to certain significant contingencies set forth therein and in the amendment, including approval of the transaction by the shareholders of the Issuer at a special meeting and approval of the by-law amendment. Other than as set forth in this statement, the Reporting Persons do not have any present plans or proposals that relate to or would result in any of the consequences listed in paragraphs (a)-(j) of Item 4 of Schedule 13D, or any agreement regarding such matters, although they may in the future take actions which would have such consequences. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a), (b) According to information furnished to the Reporting Persons by the Issuer, there were no shares of Series B Shares and 4,898,648 shares of Common Stock issued and outstanding as of November 27, 1996. Based on the above information, after taking into account the transactions described in Item 5(c) below, the following Reporting Persons will report the following direct holdings and corresponding percentage interests in the Series B Shares and Common Shares (assuming the conversion of all Series B Shares into Common Shares): 8 Page 8 of 12 Pages
==================================================================================================================================== NAME SERIES B SHARES COMMON SHARES (AFTER CONVERSION) ------------------------------------- -------------------------------------------- NUMBER OWNED %AGE OWNED NUMBER OWNED %AGE OWNED ==================================================================================================================================== PB Capital 92,350 61.51% 1,907,626 38.94% - ------------------------------------------------------------------------------------------------------------------------------------ RCBA, L.P. (for The Common Fund for 23,300 16.65% 481,296 9.82% Non-Profit Organizations) - ------------------------------------------------------------------------------------------------------------------------------------ RCBA, L.P. 0 0 0 0 - ------------------------------------------------------------------------------------------------------------------------------------ RCBA Inc. 0 0 0 0 - ------------------------------------------------------------------------------------------------------------------------------------ Richard C. Blum 0 0 0 0 ====================================================================================================================================
Tutor has had discussions with RCBA, L.P. about being one of the investors in PB Capital, and PB Capital plans to designate him as one of its designees to the Board of the Issuer. Tutor is the president of Tutor-Saliba Corp. which is the owner of approximately 351,318 shares of Common Stock or approximately 7.24% of the outstanding Common Stock of the Issuer. Tutor-Saliba Corp. has sole voting and dispositive control over those shares and no voting or dispositive control over the Series B Cumulative Convertible Preferred Stock acquired by the Reporting Persons. Although there is no formal agreement, written or oral, regarding the acquisition, disposition or voting of the securities of the Issuer as between the Reporting Persons, Tutor or Tutor-Saliba Corp., the Reporting Persons and Tutor expect that they will be consulting with each other and thus they and Tutor-Saliba Corp. may, for some purposes, be deemed to be members of a group with respect to the Issuer. As Chairman, director and a substantial shareholder of RCBA Inc., Richard C. Blum might be deemed to be the beneficial owner of the securities beneficially owned by RCBA Inc. Although Mr. Blum is joining in this Schedule as a Reporting Person, the filing of this Schedule shall not be construed as an admission that he, or any of the other shareholders, directors or executive officers of RCBA Inc. is, for any purpose, the beneficial owner of any of the securities that are beneficially owned by RCBA Inc. As a result of the Assignment Agreement and Account P Shareholders Agreement (defined below), the Reporting Persons and Account P may be deemed to constitute a "group" within the meaning of Rule 13d-5 under the Act. The filing of this Schedule shall not be construed as an admission that the Reporting Persons are the beneficial owner of any stock of the Issuer owned by Account P. (c) The Reporting Persons have engaged in no transaction involving such shares or the Common Stock for the 60 days prior to the date of the event requiring the filing of this statement except for: (i) the agreement to purchase the Series B Shares described above, (ii) the assignment to Account P of the rights and obligations to acquire 34,500 Series B Shares under the Stock Purchase and Sale Agreement, and (iii) the issuance to PB Capital on November 8, 1996 by the Issuer of 47,267 shares of the Issuer's common stock (which such shares were issued as a participation fee to PB Capital in exchange for its purchase of a 100% participation in a $10 million extension of credit by certain of the Issuer's lenders). PB Capital subsequently distributed the 47,267 shares of the Issuer common stock pro rata to its investors. (d) No change. (e) No change. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. None of the Reporting Persons or, to the best knowledge of the Reporting Persons, the other persons named in Item 2, is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Issuer, including but not limited to the transfer or voting of any securities of the Issuer, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies, except that: (a) PB Capital will be a party to a voting agreement among it, the Issuer, David Perini, Tutor, Bart Perini, and Tutor-Saliba Corporation (and if they agree, Perini Memorial Foundation and David B. Perini Testamentary Trust) to vote in favor of the election of a director designated by PB Capital at the next shareholder meeting of the Issuer. The execution of this agreement is a condition to PB Capital's acquisition of the Series B Shares. 9 Page 9 of 12 Pages (b) For two years after the date that the Stock Purchase and Sale Agreement closes, PB Capital and RCBA L.P. have agreed not to purchase any securities, securities convertible into or exchangeable for Series B Shares of the Issuer except for: securities purchased or exchanged pursuant to the terms of the Stock Purchase and Sale Agreement, securities issued by the Issuer pursuant to stock splits, stock dividends, recapitalization, securities purchased by a broker-dealer affiliate of the Reporting Persons for the account of an unaffiliated customer, securities issued pursuant to the exercise of a warrant, option or other rights pursuant to a distribution to stockholders of the Issuer or from the Issuer directly, or securities issued pursuant to a business combination between the Issuer and an entity which is not an affiliate of the Reporting Persons. (c) For two years after the date that the Stock Purchase and Sale Agreement closes, PB Capital and RCBA L.P. have agreed to allow the Issuer the right of first refusal to purchase (under certain circumstances) the Series B Shares purchased pursuant to the Stock Purchase and Sale Agreement or the Common Stock into which it may be converted. (d) Under the Management Agreement, Ronald Tutor will receive options to purchase 150,000 shares of common stock of the Issuer. (e) As noted above, PB Capital, Account P, and the Issuer have entered into the Assignment Agreement. In addition, PB Capital and Account P have entered into a shareholders agreement (the "Account P Shareholders Agreement"), and RCBA L.P. and Account P have entered into a services agreement (the "Account P Services Agreement"). Under the Account P Shareholders Agreement, Account P has agreed to a five-year restriction on the transfer of the Series B Shares it acquires from the Issuer (and any common shares issued in exchange therefor), except that Account P will have the right to sell or distribute a portion of its shares of Series B Shares (or common shares issued in exchange therefor) on a pro rata basis with PB Capital. Under the Account P Services Agreement, Account P has agreed to pay RCBA L.P. certain fees for services rendered by RCBA in finding and structuring Account P's investment in the Series B Shares and providing quarterly reports on the performance thereof. Additionally, RCBA has agreed to share with Account P certain transaction fees, if any, earned by it with respect to the Preferred Shares and Account P has agreed to share with PB Capital certain expenses incurred by PB Capital and Account P in making the investment in the Series B Shares. (f) It is expected that prior to the Closing of the transaction, Account P, PB Capital and the Issuer will enter into a Registration Rights Agreement (the "Registration Rights Agreement") under which the Issuer has agreed, among other things, upon the request of the holders of a majority of the preferred Series B Shares to prepare and file with the Securities and Exchange Commission a registration statement for an offering to be made on a delayed or continuing basis with respect to the common shares or other securities issued upon conversion of the Series B Shares. A copy of the proposed form of Registration Rights Agreement is attached hereto as part of Exhibit 4.2. (g) It is further expected that prior to the Closing of the transaction, Account P, PB Capital, the Issuer, The Common Fund, and the holders of certain warrants to purchase shares of common stock of the Issuer (the "Initial Warrantholders") will enter into a Securityholders Agreement (the "Securityholders Agreement") under which holders of the Series B Shares, on the one hand, and the Initial Warrantholders, on the other hand, have agreed, among other things, that each of them may participate in a distribution in an underwritten offering under a shelf registration of certain securities by the other, and that each of them may under certain circumstances require the other to become subject to a lockup period with respect to the sale of securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 4.2, being the Second Amendment to the Stock Purchase and Sale Agreement between PB Capital, RCBA L.P. and the Issuer. The Stock Assignment and Assumption Agreement dated as of December 13, 1996, 1996 among PB Capital Account P, and the Issuer is being filed as an exhibit to the Schedule 13D of Account P. The Shareholders Agreement dated as of December 13, 1996 between Account P and PB Capital is being filed as an exhibit to the Schedule 13D of Account P. The Services Agreement dated as of December 13, 1996 between Account P and RCBA L.P. is being filed as an exhibit to the Schedule 13D of Account P. 10 Page 10 of 12 Pages The form of Securityholders Agreement among Account P, PB Capital, the Issuer, The Common Fund, and the Initial Warrantholders is being filed as an exhibit to the Schedule 13D of Account P. 11 Page 11 of 12 Pages SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. December 13, 1996 PB CAPITAL PARTNERS, L.P. RICHARD C. BLUM & ASSOCIATES, L.P. By Richard C. Blum & Associates, L.P., its By Richard C. Blum & Associates, Inc., its General Partner General Partner By Richard C. Blum & Associates, By /s/ Inc., its General Partner ------------------------------------------------------ John H. Steinhart, Chief Administrative Officer and Managing Director By /s/ --------------------------------- John H. Steinhart, Chief Administrative Officer and Managing Director
RICHARD C. BLUM & ASSOCIATES, INC. RICHARD C. BLUM By /s/ By /s/ --------------------------------- ---------------------------------- John H. Steinhart, Chief Administrative By John H. Steinhart, Attorney-in-Fact Officer and Managing Director
12 Page 12 of 12 Pages EXHIBIT A JOINT FILING UNDERTAKING The undersigned, being duly authorized thereunto, hereby execute this agreement as an exhibit to the Schedule 13D to evidence the agreement of the below-named parties, in accordance with the rules promulgated pursuant to the Securities Exchange Act of 1934, to file this Schedule jointly on behalf of each such party. Dated: December 13, 1996 PB CAPITAL PARTNERS, L.P. RICHARD C. BLUM & ASSOCIATES, L.P. By Richard C. Blum & Associates, L.P., its By Richard C. Blum & Associates, Inc., its General Partner General Partner By Richard C. Blum & Associates, By /s/ Inc., its General Partner ------------------------------------------------------ John H. Steinhart, Chief Administrative Officer and Managing Director By /s/ --------------------------------- John H. Steinhart, Chief Administrative Officer and Managing Director
RICHARD C. BLUM & ASSOCIATES, INC. RICHARD C. BLUM By /s/ By /s/ --------------------------------- ---------------------------------- John H. Steinhart, Chief Administrative By John H. Steinhart, Attorney-in-Fact Officer and Managing Director
EX-4.2 2 SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT. 1 EXHIBIT 4.2 SECOND AMENDMENT TO STOCK PURCHASE AGREEMENT This SECOND AMENDMENT (the "Amendment") to the Stock Purchase Agreement is made this 8th day of November, 1996, by and among RICHARD C. BLUM & ASSOCIATES, L.P., a California limited partnership ("RCBA"), PB CAPITAL PARTNERS, L.P., a Delaware limited partnership ("Purchaser"), and PERINI CORPORATION, a Massachusetts corporation ("Seller"). Capitalized terms not defined herein shall have the meaning given them in the Stock Purchase and Sale Agreement (the "Agreement"), dated July 24, 1996, by and among RCBA, Purchaser, and Seller. WHEREAS, RCBA, Purchaser, and Seller are parties to the Agreement; and WHEREAS, by letter agreements dated August 21, 1996, September 16, 1996, September 30, 1996, and October 9, 1996, RCBA, Purchaser and Seller agreed to change certain deadlines in the Agreement (collectively, the "First Amendment"); and WHEREAS, RCBA, Purchaser, and Seller now wish to amend certain terms thereof; and WHEREAS, except as amended hereby, the RCBA, Purchaser, and Seller desire the Agreement, as amended, to continue in full force and effect. NOW, THEREFORE, in consideration of the premises and of the respective representations, warranties, covenants, agreements and conditions contained herein and in the Agreement, each of the parties agrees as follows: 1. Section 1.6 is amended and restated in its entirety as follows: 1.6 "Bylaw Amendments" means the amendments to the Bylaws of the Seller, to be approved by the Board of Directors and the shareholders of Seller on or prior to the Closing Date, a true and correct copy of which is attached as Exhibit 1.6 hereto. 2. Section 1.28 is amended and restated in its entirety as follows: 1.28 "Proxy Statement" means the proxy statement, complying with the requirements of the Securities Exchange Act of 1934 (the "Exchange Act"), sent to the shareholders of Seller in connection with the Shareholder Meeting of Seller with respect to, among other matters, the Shareholder Meeting Matters. 2 3. Section 2.1 is amended by replacing "September 9, 1996" with "January 31, 1997". 4. Section 3.5 is amended and restated in its entirety as follows: 3.5 Rights Agreement. The Rights Agreement shall be in full force and effect and not have been amended, modified or supplemented on or after the date of this Agreement other than as provided in the following sentence. The Board of Directors of the Seller shall have (a) amended or waived provisions of the Rights Agreement such that neither the execution nor the delivery of this Agreement and the other Transaction Documents nor the fulfillment of the terms of this Agreement by the Seller nor the issuance of shares of Conversion Stock as herein contemplated will cause there to be a Stock Acquisition Date or a Distribution Date (as those terms are defined in the Rights Agreement), (b) amended the provisions of the Rights Agreement to provide that Purchaser shall not be deemed to be an Adverse Person (as that term is defined in the Rights Agreement), and (c) amended the provisions of the Rights Agreement (i) to lower, for at least thirty-eight months following the Closing, the threshold for definition of an Acquiring Person from beneficial ownership of 20% of the then issued and outstanding Common Stock to beneficial ownership 10% of the then issued and outstanding Common Stock, and (ii) to change the Initial Expiration Date to a date that is at least thirty-eight months following the Closing. 5. Section 3.7 is amended by striking the words "upon ratification within one year hereof of the sale of Shares described in this Agreement by shareholders of Seller (including holders of the Shares)". 6. Article III is amended by adding the following after Section 3.14: 3.15 Shareholder Meeting Matters. Seller shall have held the Shareholder Meeting and the shareholders of Seller shall have approved the Shareholder Meeting Matters by the requisite votes required by applicable law. 3.16 Ronald Tutor. Ronald Tutor shall not be prevented from serving on the Board of Directors of Seller or from acting chief operating officer of Seller by (a) any action of a state or federal governmental authority, or (b) his death or disability. No state or federal governmental authority shall have threatened to file a lawsuit or institute administrative action (x) to prevent Ronald Tutor from so serving, (y) to limit his role as - 2 - 3 officer or director of Seller, or (z) to seek civil or criminal damages or penalties against any of the parties hereto or Tutor should he serve as an officer or director of Seller, and, in the reasonable judgment of RCBA, there shall not be a material risk of such a suit or action. Seller shall have entered into a management agreement with Tutor-Saliba Corporation in substantially the form of Exhibit 3.16 hereto, with such changes as shall be required by any state or federal governmental authority (which changes are reasonably acceptable to Seller, Tutor-Saliba Corporation, and RCBA), and such agreement shall be in full force and effect. 3.17 Conflict of Interest. RCBA has previously advised Seller of its insistence that RCBA, PB, and Seller avoid any and all possible conflict of interest issue arising out of PB's proposed investment in Seller and the relationship of a principal of RCBA to a United States Senator. There fore, it is a condition to Closing (a) that the Senate Ethics Committee and regular counsel for the Senator on such matters shall each have given an opinion concerning RCBA's involvement with Seller that, in the reason able judgment of RCBA, does not require the imposition of material restrictions on the business of Seller or upon the ability of the Senator to vote on matters of concern to her constituents, and (b) that RCBA be assured by the Executive Committee of Seller's Board of Directors that it will cause Seller not to bid for a project when and if advised of RCBA's view that such bid could create a significant risk of exposing Seller, RCBA, PB, and/or the Senator to a conflict of interest problem. 7. Article IV is amended by adding the following after Section 4.9: 4.10 Shareholder Meeting Matters. Seller shall have held the Shareholder Meeting and the shareholders of Seller shall have approved the Shareholder Meeting Matters by the requisite votes required by applicable law. 8. Section 5.22 is amended and restated in its entirety as follows: 5.22 No Material Adverse Change. Since the latest date as of which information with respect to the following items is given in the SEC Documents filed prior to July 24, 1996 and except as contained in the Transaction Documents and the transactions contemplated therein, there has not been: (a) any change that by itself or together with other changes has a Material Adverse Effect; or - 3 - 4 (b) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of Seller; or (c) except (i) as provided for in this Agreement or in the other Transaction Documents, or (ii) for the warrants to be issued to the banks listed on Exhibit 3.9 on the Closing Date, any change in the authorized capital of Seller or in its outstanding securities or any change in its ownership interests or any grant of any options, warrants, calls, conversion rights or commitments; or (d) any declaration or payment of any dividend or distribution in respect of the capital stock or any direct or indirect redemption, purchase or other acquisition of any of the capital stock of Seller (other than in accordance with the credit agreements described in Exhibit 3.9 and consented to by RCBA); or (e) any material increase in the compensation, bonus, sales commissions or fee arrangements payable or to become payable by Seller to any of its officers directors, stockholders, employees, consultants or agents, except for ordinary and customary bonuses and salary increased for employees in accordance with past practice; or (f) any work interruptions, labor grievances or claims filed, or any similar event or condition of any character, materially adversely affecting the business or future prospects of Seller; or (g) any sale or transfer, or any agreement to sell or transfer, any material assets property or rights of Seller to any person (other than any disposition by Seller of assets on terms substantially similar to those already disclosed to RCBA or otherwise consented to by RCBA); or (h) any cancellation, or agreement to cancel, any material indebtedness or other material obligation owing to Seller, provided that Seller may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice; or (i) any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the material assets, property or rights of Seller or requiring consent of any party to the transfer and assignment of any such assets, property or rights; or - 4 - 5 (j) any purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any material property, rights or assets outside of the ordinary course of business of Seller; or (k) any waiver of any material rights or claims of Seller; or (l) any material breach, amendment or termination of any material contract, agreement, license, permit or other right to which Seller is a party; or (m) any material transaction by Seller outside the ordinary course of business; or (n) any capital expenditures or commitment by Seller, either individually or in the aggregate, exceeding $5,000,000.00; or (o) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Seller or the revaluation by Seller of any of its assets (other than a change in the valuation of the assets described in the parenthetical clause to Section 5.22(g) in connection with any such disposition); or (p) any creation or assumption by Seller of any mortgage, pledge, security interest or lien or other encumbrance on any asset other than: (i) liens arising under existing lease financing arrangements which are not material, (ii) liens for taxes, assessments or other governmental charges not yet due or which are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of Seller in accordance with GAAP; (iii) liens granted to the banks listed on Exhibit 3.9; or (iv) carriers', warehousemen's, mechancs', materialmen's, repairmen's or other like liens arising by operation of law in the ordinary course of business of Seller so long as (A) the underlying obligations are not overdue for a period of more than 60 days or (B) such liens as are being contested in good faith and by appropriate proceedings - 5 - 6 and adquate reserves with respect thereto are maintained on the books of Seller in accordance with GAAP; (q) any entry into, amendment of, relinquishment, termination or non-renewal by Seller of any contract, lease transaction, commitment or other right or obligation that would have a Material Adverse Effect; or (r) any loan by Seller to any person or entity, incurring by Seller, of any indebtedness, guaranteeing by Seller of any indebtedness, issuance or sale of any debt securities of Seller or guaranteeing of any debt securities of others (other than loans to Seller from construction joint ventures in which Seller owns an interest not to exceed, in the aggregate, $35,000,000); or (s) the commencement or notice or threat of commencement of any material lawsuit or proceeding against or investigation of Seller or any of its affairs; or (t) negotiation or agreement by Seller or any officer or employee thereof to do any of the things described in the preceding clauses (a) through (s) (other than negotiations with RCBA and its representatives regarding the transactions contemplated by this Agreement). 9. Article V is amended by adding the following after Section 5.25: 5.26 Proxy Statement. The Proxy Statement, sent to shareholders of Seller after the date hereof but before Closing, will not have included any untrue statement of a material fact, or omitted to state any material fact, necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation shall not encompass any information in the Proxy Statement that was furnished in writing to the Seller by or on behalf of Purchaser or RCBA for use specifically in connection with the preparation of the Proxy Statement. 5.27 Liquidated Damages Clauses. Except as set forth on Schedule 5.27, Seller does not currently have any construction contract that does not have a liquidated damages provision establishing Seller's maximum potential liability in the event of a breach. - 6 - 7 5.28 Ownership. To the knowledge of Seller: (a) at no time during the preceding thirty-six months was there any person or group that had beneficial ownership of more than five percent (5%) of the $21.25 Preferred Stock, (b) the only persons or groups that have beneficial ownership of more than five percent (5%) of the Common Stock are listed on Schedule 5.28, (c) Schedule 5.28 shows the ownership of Common Stock of the persons or groups referred to in clause (b) of this Section as of the dates shown on Schedule 5.28, (d) the persons or groups referred to in clause (b) of this section do not own, directly or indirectly, any shares of the $21.25 Preferred Stock except as otherwise shown on Schedule 5.28, and (e) at no time during the preceding thirty-six months did any of the persons or groups listed on Schedule 5.28 own fewer shares of Common Stock than the lowest amount shown with respect to such person or group on Schedule 5.28. 10. Section 7.2(d) is amended by adding the following at the end thereof: "the shareholders of Seller shall have approved of such Bylaw Amendments, and". 11. Section 7.5(a) and (b) are each amended by inserting the phrase " AS AMENDED," after the words "JULY 24, 1996". 12. Section 7.9 is amended and restated in its entirety as follows: 7.9 Shareholder Meeting. As promptly as reasonably possible after the date hereof, Seller shall call and hold a special meeting of the shareholders of Seller ("Shareholder Meeting"), to obtain shareholder approval for the issuance of the Class B Shares (in a manner that complies with the requirements of American Stock Exchange Rule 713), and the Bylaw Amendments (such items the "Shareholder Meeting Matters"). Seller shall recommend, and shall use commercially reasonable efforts (including the preparation and circulation of the Proxy Statement) to obtain approval for the Shareholder Meeting Matters. 13. Section 7.10 is amended and restated in its entirety as follows: 7.10 Proxy Statement. The Proxy Statement shall not be filed, and no amendment or supplement to the Proxy Statement shall be made, without consultation with RCBA and Purchaser. Seller shall notify RCBA and Purchaser promptly of the receipt by it of any comments from the SEC or its staff and of any request by the SEC for amendments or supplements to the Proxy Statement and shall supply RCBA and Purchaser with copies of all - 7 - 8 correspondence between it and its representatives, on the one hand, and the SEC or the members of its staff, on the other hand, with respect to the Proxy Statement. 14. Section 7.12 is amended by striking the phrase: "Subsequent to approval by the shareholders of the Seller of the Shareholder Meeting Matters at the Shareholders Meeting,". 15. Article VII is amended by adding the following after Section 7.19: 7.20 Appointment of Designated Directors. Seller covenants and agrees that the holders of a majority of the Conversion Shares (as that term is defined in the Certificate of Vote) shall have the right, by sending written notice to Seller's board of directors, to nominate for election, designate, or remove Designated Directors and members of the Executive Committee (as and to the extent provided in Section 13 of the Certificate of Vote to the holders of a majority of the Series B Cumulative Convertible Preferred Stock), if all of the following conditions are satisfied: (a) there are no shares of Series B Cumulative Convertible Preferred Stock issued and outstanding; (b) notwithstanding the absence of oustanding shares of Series B Cumulative Convertible Preferred Stock, pursuant to the Certificate of Vote the number of Designated Directors pursuant to the Certificate of Vote is equal to or greater than one (1); (c) the holders of the Conversion Shares providing such notice certify the number of Conversion Shares that are outstanding, the number of shares that each of them owns, and that, in aggregate, they own a majority of the Conversion Shares outstanding (or the Company reasonably determines that they own such a majority); and (d) in the case of the nomination or election of a director, the notice contains the information with respect to the nominee which would be required by the then applicable rules of the Securities and Exchange Commission or the requirements of the national stock exchange on which the Company's Common Stock is then listed to be included in the Company's proxy statement for a meeting of stockholders at which such nominee were to be elected and the Board does not reasonably object to such nominee. - 8 - 9 Upon receipt of a notice referred to in the preceding sentence, the Board of directors of Seller shall, unless prohibited by applicable law, cause such nominations, designations, and removals of Designated Directors and members of the Executive Committee to be made effective. 16. Article IX is amended by replacing "September 9, 1996" with "January 31, 1997 " and by replacing "October 9, 1996" with "February 28, 1997". 17. Section 10.3(b)(ii) is amended by replacing the phrase "and 4.8" with the phrase ", 4.8, or 4.10". 18. Section 10.3(c)(iii) is amended by replacing the phrase "and 4.8" with the phrase ", 4.8, or 4.10". 19. Article XI is amended and restated in its entirety as follows: All representations and warranties contained in this Agreement shall survive the execution of this Agreement and the delivery of the Shares for a period of three years from the date of such delivery. 20. Article XIII is amended by adding at the end thereof the following: In addition, Purchaser shall have the right, prior to Closing, to assign its rights and obligations hereunder to purchase a specified number of shares (but not to exceed 65,000 shares) at the price provided by this Agreement to financially responsible third parties (other than persons to whom transfer would, following Closing, be prohibited pursuant to Section 14.12 or be prohibited by applicable law). Such person or persons (each, a "Permitted Assignee") and Purchaser shall execute an assumption and assignment agreement (the "Assignment Agreement") reasonably acceptable to Seller whereby the Permitted Assignee agrees to be bound by the terms and conditions of the Agreement and makes the representations and warranties called for by Article VI (subject only to such changes as are necessary to address the legal nature of such person). Once such assignment is duly executed, (a) the term "Purchaser" as used in this Agreement and the Transaction Documents shall mean PB Capital, L.P. and such Permitted Assignee, and (b) PB Capital, L.P. shall be released from its obligations under this Agreement insofar as they relate to its obligation to purchase the number of shares that such Permitted Assignee agreed to purchase under the Assignment Agreement. 21. Section 14.2 is amended and restated as follows: - 9 - 10 14.2 Expenses. Except as set forth in Section 10.3, Amendment No. 7 to Bridge Credit Agreement and Amendment No. 3 to Credit Agreement, that certain letter agreement dated as of November 7, 1996 between Seller and Purchaser, or the following sentence, each party shall bear its own expenses. Seller acknowledges that RCBA has incurred significant expenses in the interest of expediting and completing the transaction, and has also incurred due diligence expenses that will benefit Seller on an ongoing basis; therefore, immediately following Closing, Seller will reimburse RCBA for its out of pocket expenses (including professional fees), but such reimbursement shall not exceed $150,000 unless RCBA and Seller otherwise agree. 22. Exhibit 1.7 is amended by replacing it in its entirety with Exhibit 1.7 hereto. 23. Exhibit 1.32 is amended by replacing it in its entirety with Exhibit 1.32 hereto. 24. Exhibit 3.12 is amended by replacing it in its entirety with Exhibit 3.12 hereto. - 10 - 11 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment. PB CAPITAL PARTNERS, L.P. PERINI CORPORATION By: Richard C. Blum & Associates, L.P., its General Partner By: /s/ DAVID B. PERINI By: Richard C. Blum & Associates, ---------------------------- Inc., its General Partner Name: David B. Perini Title: Chairman and President By: /s/ A. L. DEAN JR. --------------------------- Name: Alexander L. Dean Jr. Title: Managing Director RICHARD C. BLUM & ASSOCIATES, L.P. By: Richard C. Blum & Associates, Inc., its General Partner By: /s/ A. L. DEAN JR. --------------------------- Name: Alexander L. Dean Jr. Title: Managing Director - 10 - 12 SCHEDULE LIST 1. Revised Exhibit 1.7 2. Revised Exhibit 1.32 3. Revised Exhibit 3.12 4. Exhibit 3.16 5. Revised Exhibit 1.6 13 CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK OF PERINI CORPORATION (PURSUANT TO CHAPTER 156B, SECTION 26 OF THE GENERAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS) ------------------------ Perini Corporation, a corporation organized and existing under the laws of the State of Massachusetts (hereinafter called the "Corporation"), and having its principal office in this State at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701, hereby certifies to the State Department of Massachusetts that: FIRST: Pursuant to the authority granted to and vested in the Board of Directors of the Corporation (hereinafter called the "Board of Directors" or the "Board") in accordance with the provisions of Article ________ of the Restated Articles of Organization of the Corporation (the "Articles"), the Board of Directors, at a meeting duly convened and held on ____ __, 1996, regarding the sale and issuance by the Corporation of cumulative convertible preferred stock, adopted resolutions (the "Resolutions") classifying 500,000 shares of Preferred Stock of the Corporation into a single series to be designated as "Series B Cumulative Convertible Preferred Stock" and setting the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption of such shares as follows: SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK 1. Designation and Amount. There shall be a series of Preferred Stock designated as "Series B Cumulative Convertible Preferred Stock" and the number of shares constituting such series shall be 500,000, of which 150,150 shall be issued initially (the date of such issuance, the "Original Issue Date") and the remainder shall be reserved for issuance as dividends pursuant to Section 3 below. The number of shares designated as shares of Series B Cumulative Convertible Preferred Stock may be decreased (but not increased) by the Board of Directors without a vote of stockholders; provided, however, that such number may not be decreased without the approval of the holders of 66-2/3% of the then outstanding shares of Series B Cumulative Convertible Preferred Stock. 2. Preemptive Rights. Holders of shares of Series B Cumulative Convertible Preferred Stock are not entitled to any preemptive or subscription rights in respect of any securities of the Corporation. 14 3. Dividends. (a) The holders of shares of Series B Cumulative Convertible Preferred Stock shall be entitled to receive, when and as authorized and declared by the Board of Directors out of funds at the time legally available therefor, dividends at the Cash Dividend Rate (defined below) per annum times the Liquidation Preference (defined below in Section 4(a)) if paid in cash, or at the In-Kind Dividend Rate (defined below) per annum times the Liquidation Preference if paid in additional shares of Series B Cumulative Convertible Preferred Stock, and no more, which shall be fully cumulative, shall accrue with respect to any such share from the original date of issuance of such share without interest and shall be payable quarterly in arrears on March 15, June 15, September 15 and December 15 of each year (a "Dividend Payment Date"), commencing March 15, 1997 (except that if any such date is a Saturday, Sunday or legal holiday, then such dividend shall be payable on the next day that is not a Saturday, Sunday or legal holiday) to holders of record as they appear upon the stock transfer books of the Corporation on each March 1, June 1, September 1 and December 1 immediately preceding the payment dates, or such other dates as shall be fixed at the time of the authorization and declaration by the Board of Directors (or, to the extent permitted by applicable law, a duly authorized committee thereof), which date shall not be less than ten (10) nor more than sixty (60) days preceding the relevant dividend payment date. For purposes hereof, the term "legal holiday" shall mean any day on which banking institutions are authorized to close in New York, New York. The amount of dividends payable per share of Series B Cumulative Convertible Preferred Stock for each quarterly dividend period shall be computed by dividing the annual dividend amount by four and shall include fractional shares. The amount of dividends payable for the initial dividend period and any period shorter than a full quarterly period during which shares are outstanding shall be computed on the basis of a 360-day year of twelve 30-day months and the actual number of days elapsed in the period in which payable. No interest shall be payable in respect of any dividend payment on the Series B Cumulative Convertible Preferred Stock or any other Parity Dividend Stock (as hereinafter defined) which may be in arrears. The "Cash Dividend Rate" shall be 9 percent per annum if a Special Default (defined below) has occurred and is continuing at any time during the applicable Annual Payment Period (defined below) or Semiannual Payment Period (defined below), and shall be 7 percent per annum at all other times. The "In-Kind Dividend Rate" shall be 12 percent per annum if a Special Default has occurred and is continuing at any time during the applicable Annual Payment Period or Semiannual Payment Period, and shall be 10 percent per annum at all other times. - 2 - 15 (b) Any dividend payments may be made, in the sole discretion of the Board of Directors, as follows (for purposes of this determination, the Designated Directors (defined below in Section 13) shall not vote): (i) Prior to December 15, 1999: (1) on or prior to the Original Issue Date and prior to December 15, 1997 and 1998, the Board of Directors shall determine whether dividend payments payable on the next four Dividend Payment Dates beginning December 15 (each, an "Annual Payment Period") shall be paid in (i) cash or (ii) additional shares of Series B Cumulative Convertible Preferred Stock valued at the Liquidation Preference (but not in any combination of cash and additional shares of Series B Cumulative Convertible Preferred Stock); provided, however, that the first Annual Payment Period shall commence March 15, 1997, and run for three Dividend Payment Dates if the Original Issue Date is between December 15, 1996 and March 15, 1997; (2) in the event that, during an Annual Payment Period when the Board has elected to pay dividends on the Series B Cumulative Convertible Preferred Stock in cash, the Corporation fails to authorize, declare and pay in cash on a Dividend Payment Date the full amount of the cash dividend due at the Cash Dividend Rate, then, on or prior to such Dividend Payment Date, the Board shall authorize, declare and pay a supplemental stock dividend in shares of Series B Cumulative Convertible Preferred Stock (valued at the Liquidation Preference) equal to the difference between the dividend that would have been paid in-kind at the In-Kind Dividend Rate (assuming that the Board had elected to pay dividends for such period in-kind and assuming that a Special Default existed) and the cash dividend actually declared and paid on such Dividend Payment Date and on the previous Dividend Payment Date during such Annual Payment Period, if any. (ii) On or after December 15, 1999: (1) On or prior to December 15, 1999 and on or prior to each June 15 and December 15 thereafter, the Board of Directors shall determine whether dividend payments accruing on the next two Dividend Payment Dates beginning on such Dividend Payment Date (each a "Semiannual Payment Period") shall be paid in (i) cash or (ii) additional shares of Series B Cumulative Convertible Preferred Stock valued at the Liquidation Preference (but - 3 - 16 not in any combination of cash and additional shares of Series B Cumulative Convertible Preferred Stock); (2) in the event that, during a Semiannual Payment Period when the Board has elected to pay dividends on the Series B Cumulative Convertible Preferred Stock in cash, the Corporation fails to authorize, declare and pay in cash on a Dividend Payment Date the full amount of the cash dividend due at the Cash Dividend Rate, then, on such Dividend Payment Date, the Board shall authorize, declare and pay a supplemental stock dividend in shares of Series B Cumulative Convertible Preferred Stock (valued at the Liquidation Preference) equal to the difference between the dividend that would have been paid in-kind at the In-Kind Dividend Rate (assuming that the Board had elected to pay dividends for such period in-kind and assuming that a Special Default existed) and the cash dividend actually declared and paid on such Dividend Payment Date and on the previous Dividend Payment Date during such Semiannual Payment Period, if any. (iii) All shares of Series B Cumulative Convertible Preferred Stock issued as a dividend with respect to the Series B Cumulative Convertible Preferred Stock shall thereupon be duly authorized, validly issued, fully paid and nonassessable. (c) In the case of shares of Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date, dividends shall accrue and be cumulative from such date. In the case of shares of Series B Cumulative Convertible Preferred Stock issued as a dividend on shares of Series B Cumulative Convertible Preferred Stock, dividends shall accrue and be cumulative from the dividend payment date in respect of which such shares were (or should have been) issued as a dividend. (d) Each fractional share of Series B Cumulative Convertible Preferred Stock outstanding shall be entitled to a ratably proportionate amount of all dividends accruing with respect to each outstanding share of Series B Cumulative Convertible Preferred Stock, and all such dividends with respect to such outstanding fractional shares shall be cumulative and shall accrue (whether or not declared), and shall be payable in the same manner and at such times as provided for above with respect to dividends on each outstanding share of Series B Cumulative Convertible Preferred Stock. Each fractional share of Series B Cumulative Convertible Preferred Stock outstanding shall also be entitled to a ratably proportionate amount of any other distributions made with respect to each outstanding share of Series B Cumulative Convertible Preferred Stock, and all such - 4 - 17 distributions shall be payable in the same manner and at the same time as distributions on each outstanding share of Series B Cumulative Convertible Preferred Stock. (e) No dividends or other distributions shall be authorized, declared, paid or set apart for payment on any shares of Common Stock or other stock of the Corporation ranking junior as to dividends to the Series B Cumulative Convertible Preferred Stock (collectively, the "Junior Dividend Stock") except for dividends or distributions that are not Extraordinary Equity Payments (defined below in Section 8(h)). (f) If at any time any dividend on the $21.25 Convertible Exchangeable Preferred Stock (the "$21.25 Preferred Stock") or any other stock of the Corporation hereafter issued ranking senior as to dividends to the Series B Cumulative Convertible Preferred Stock (collectively with the $21.25 Preferred Stock, the "Senior Dividend Stock") shall be in arrears, in whole or in part, then (except to the extent allowed by the terms of such Senior Dividend Stock) no cash dividend shall be authorized, declared, paid or set apart for payment on the Series B Cumulative Convertible Preferred Stock unless and until all accrued and unpaid dividends with respect to the Senior Dividend Stock for all payment periods ending on or prior to the date of payment of the current dividend on the Series B Cumulative Convertible Preferred Stock shall have been authorized, declared and paid or set apart for payment. Dividends payable in additional shares of Series B Cumulative Convertible Preferred Stock are permitted and not subordinated in payment to payment of dividends on the Senior Dividend Stock. (g) No dividends or other distributions shall be authorized, declared, paid or set apart for payment on any class or series of the Corporation's stock heretofore or hereafter issued ranking, as to dividends, on a parity with the Series B Cumulative Convertible Preferred Stock (the "Parity Dividend Stock") for any period unless full cumulative dividends have been, or contemporaneously are, authorized, declared and paid or set apart in trust for such payment on the Series B Cumulative Convertible Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. No full dividends (other than dividends payable in additional shares of Series B Cumulative Convertible Preferred Stock) shall be authorized, declared, paid or set apart for payment on the Series B Cumulative Convertible Preferred Stock for any period unless full cumulative dividends have been, or contemporaneously are, authorized, declared and paid or set apart for payment on the Parity Dividend Stock for all dividend periods terminating on or prior to the date of payment of such full cumulative dividends. When accrued dividends are not paid - 5 - 18 in full on the Series B Cumulative Convertible Preferred Stock and the Parity Dividend Stock, all cash dividends authorized, declared and paid or set apart for payment on the Series B Cumulative Convertible Preferred Stock and the Parity Dividend Stock shall be authorized, declared, paid or set apart for payment pro rata so that the amount of dividends authorized, declared, paid or set apart for payment per share on the Series B Cumulative Convertible Preferred Stock and the Parity Dividend Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the Series B Cumulative Convertible Preferred Stock and the Parity Dividend Stock bear to each other. 4. Liquidation Preference. (a) The liquidation preference of the Series B Cumulative Convertible Preferred Stock shall be $200.00 per share (the "Liquidation Preference"). Subject to the full payment of the liquidation preferences of the $21.25 Preferred Stock and the shares of stock of the Corporation hereafter issued ranking senior as to liquidation rights to the Series B Cumulative Convertible Preferred Stock (the "Senior Liquidation Stock"), in the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of shares of Series B Cumulative Convertible Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are stated capital or surplus of any nature, an amount equal to the dividends accrued and unpaid on such shares on the date of final distribution to such holders, whether or not declared, without interest, plus a sum equal to the Liquidation Preference, and no more, before any payment shall be made or any assets distributed to the holders of shares of Common Stock or any other class or series of the Corporation's stock hereafter issued ranking junior as to liquidation rights to the Series B Cumulative Convertible Preferred Stock (collectively, the "Junior Liquidation Stock"). (b) The assets of the Corporation available for distribution after the liquidation preferences of the Senior Liquidation Stock are fully met shall be distributed ratably among the holders of the Series B Cumulative Convertible Preferred Stock and any other class or series of the Corporation's stock hereafter issued ranking on a parity as to liquidation rights with the Series B Cumulative Convertible Preferred Stock in proportion to the respective preferential amounts to which each is entitled (but only to the extent of such preferential amounts); provided, however, that after payment in full of the Liquidation Preferences, the holders of the shares of the Series B Cumulative Convertible Preferred Stock shall not be entitled to any further participation in any distribution of assets by the Corporation. Neither a consolidation or merger of the Corporation with or into - 6 - 19 another corporation nor a merger of any other corporation with or into the Corporation, nor a sale or transfer of all or any part of the Corporation's assets for cash, securities or other property, will be considered a liquidation, dissolution or winding up of the Corporation. 5. Limitation on Share Repurchase. If at any time any dividends on the Series B Cumulative Convertible Preferred Stock shall be in arrears or the Corporation shall have failed to make any purchase of shares of Series B Cumulative Convertible Preferred Stock tendered to it pursuant to Section 7, the Corporation shall not -- and the Corporation shall not permit any other corporation or legal entity directly or indirectly controlled by the Corporation (collectively, the "subsidiaries") to -- repurchase, redeem, retire or otherwise acquire any shares of Junior Dividend Stock, Junior Liquidation Stock, or any warrants, rights, calls or options exercisable for or convertible into any shares of Junior Dividend Stock or Junior Liquidation Stock, except by conversion into or exchange for shares of Junior Dividend Stock or Junior Liquidation Stock and other than purchases, redemptions, retirements or acquisitions made pursuant to and as required by the terms of any employee incentive or benefit plan of the Corporation or any subsidiary of the Corporation in effect on July 24, 1996 or as amended or adopted by the Corporation with approval of the Executive Committee of the Corporation. Notwithstanding the preceding sentence, any subsidiary which is wholly owned by the Corporation may repurchase, redeem, retire or otherwise acquire shares of its stock. 6. Redemption at Option of the Corporation. (a) So long as shares of Common Stock shall have traded on the Primary Exchange (defined below) (i) for at least forty (40) of the forty-five (45) trading days (each of which trading days shall be after the third anniversary of the Original Issue Date (the "Third Anniversary")) immediately preceding the Determination Date (defined below), and (ii) on each of the ten (10) consecutive trading days immediately prior to the Determination Date (defined below), at a Closing Price (as hereinafter defined) in excess of the Hurdle Percentage (defined below) of the conversion price then in effect for the Series B Cumulative Convertible Preferred Stock for each such trading day, all, but not less than all, of Series B Cumulative Convertible Preferred Stock may thereafter be redeemed at the election of the Board of Directors made on any date (the "Determination Date") on or after the Third Anniversary, for the Redemption Price (defined below in Section 7(b)), plus an amount in cash equal to accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption. For purposes of the determination of the Board called for in the - 7 - 20 preceding sentence, the Designated Directors (defined below in Section 13) shall not vote. The date on which such shares shall be redeemed shall be a date that is at least ten (10), but no more than thirty (30), business days after the Determination Date (during which period the holders of the Series B Cumulative Convertible Preferred Stock may, but shall not be required to, convert such stock into Common Stock). The Hurdle Percentage shall be 150% from and after the Third Anniversary, and to the fifth anniversary of the Original Issue Date; thereafter, the Hurdle Percentage shall be 125%. "Primary Exchange" shall mean the American Stock Exchange or such other principal national securities exchange or quotation system on which the Common Stock of the Corporation is quoted or listed or admitted to trading. (b) Not more than thirty (30) nor less than ten (10) business days prior to the redemption date fixed by the Board of Directors, the Corporation shall give notice by hand or overnight courier to the holders of record of shares of the Series B Cumulative Convertible Preferred Stock to be redeemed, addressed to such holders at their last addresses as shown upon the stock transfer books of the Corporation. Each such notice of redemption shall specify the date fixed for redemption; the Redemption Price (defined below in Section 7(b)) plus an amount in cash equal to accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption; the place or places of payment; that payment will be made upon presentation and surrender of the shares of Series B Cumulative Convertible Preferred Stock; that on and after the redemption date dividends will cease to accrue on such shares; the then effective conversion price pursuant to Section 8; and that the right of holders to convert shares of Series B Cumulative Convertible Preferred Stock shall terminate at the close of business on the business day prior to the redemption date (unless the Corporation defaults in the payment of the Redemption Price plus an amount in cash equal to accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption). (c) Any notice as herein provided shall be deemed to be given when delivered to the address specified in the preceding section. On or after the date fixed for redemption as stated in such notice, each holder of the shares called for redemption, unless such holder has exercised such holder's right to convert shares of Series B Cumulative Convertible Preferred Stock as provided above, shall surrender the certificate representing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the Redemption Price (defined below in Section 7(b)) plus an amount in cash equal to accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption. If less than all the shares - 8 - 21 evidenced by any such surrendered certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. Notice having been given as aforesaid, if, on the date fixed for redemption, funds necessary for the redemption shall be available therefor and shall have been irrevocably deposited or set aside in trust for the holders of the shares of Series B Cumulative Convertible Preferred Stock, then, notwithstanding that the certificates representing any shares so called for redemption shall not have been surrendered, dividends with respect to the shares so called shall cease to accrue after the date fixed for redemption, such shares shall no longer be deemed outstanding, the holders thereof shall cease to be stockholders of the Corporation and all rights whatsoever with respect to the shares so called for redemption (except the right of the holders to receive the Redemption Price plus an amount in cash equal to accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption, without interest upon surrender of their certificates therefor) shall terminate. If funds legally available for such purpose are not sufficient for redemption of the shares of Series B Cumulative Convertible Preferred Stock to be redeemed, then the certificates representing such shares shall be deemed not to be surrendered, such shares shall remain outstanding and the rights of holders of shares of Series B Cumulative Convertible Preferred Stock thereafter shall continue to be only those of a holder of shares of the Series B Cumulative Convertible Preferred Stock. (d) Except as provided in Section 7, the shares of Series B Cumulative Convertible Preferred Stock shall not be subject to the operation of any mandatory purchase, retirement or sinking fund. 7. Mandatory Repurchase and Repurchase at Option of the Holder. (a) On the eighth anniversary of the Original Issue Date, the Corporation shall purchase from each holder of shares of Series B Cumulative Convertible Preferred Stock one-third of the number of shares of the Series B Cumulative Convertible Preferred Shares held by such holder on such eighth anniversary. On the ninth anniversary of the Original Issue Date, the Corporation shall purchase from each holder of shares of Series B Cumulative Convertible Preferred Stock one-half of the number of shares of the Series B Cumulative Convertible Preferred Shares held by such holder on such ninth anniversary. On the tenth anniversary of the Original Issue Date, the Corporation shall purchase from each holder of shares of Series B Cumulative Convertible Preferred Stock the number of shares of the Series B Cumulative Convertible Preferred Shares held by such holder on such tenth anniversary. Repurchases made pursuant to this Section 7(a) shall be effected on such anniversary date (or such other day as the - 9 - 22 holder and the Corporation may agree) and shall be for the Redemption Price (defined below in Section 7(b)) plus an amount in cash equal to the accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for repurchase. Any shares of Series B Cumulative Convertible Preferred Stock which would have accrued but have not been paid on any shares tendered for purchase shall be deemed to be tendered for purchase. (b) (i) If one or more Special Defaults shall occur at any time or from time to time on or after the Original Issue Date, each holder of shares of the Series B Cumulative Convertible Preferred Stock shall have the right, at such holder's option exercisable at any time within 120 days after the happening of each such Special Default, to require the Corporation to purchase all or any part of the shares of Series B Cumulative Convertible Preferred Stock then held by such holder as such holder may elect at the Redemption Price (defined below) plus, in each case, an amount in cash equal to the accrued and unpaid dividends thereon, whether or not authorized or declared, to but excluding the date fixed for redemption. Any shares of Series B Cumulative Convertible Preferred Stock which would have accrued but have not been paid on any shares tendered for purchase shall be deemed to be tendered for purchase. The "Redemption Price" shall be the Liquidation Preference where there have been no Special Defaults, and -- after there has been one or more Special Defaults -- shall be 130% of the greater of the Liquidation Preference or the market value of the Common Stock (valued at the average of the Closing Prices on the preceding twenty (20) trading days immediately prior to the occurrence of the Special Default) into which the Series B Cumulative Convertible Preferred Stock would then be convertible assuming such shares to be immediately convertible (whether or not such shares were then actually convertible); (ii) A "Special Default" shall mean any of the following events which occur after the Original Issuance Date and while any shares of the Series B Cumulative Convertible Preferred Stock are outstanding: (1) the disbanding or other restructuring, reorganization, or reconstitution (including without limitation change in the number of members) of the Executive Committee of the Board without the prior written approval of a majority of the members of the Executive Committee who were members prior to such change (and, for so long as the holders of the Series B Cumulative Convertible Preferred Stock shall have the right to designate more than one director to the Executive Committee pursuant to Section 13(b) below, including the members so designated by the holders of the Series B Cumulative Convertible Preferred Stock); - 10 - 23 (2) the taking of any of the following actions by the Corporation or the Board without the approval of a majority of the members of the Executive Committee of the Board (whether or not such action was taken by the Board in view of its fiduciary duties pursuant to the last sentence of Section 3.3(A) of the By-Laws of the Corporation, as amended): (A) any borrowing or guarantee by the Corporation exceeding $15 million, (B) except for issuance of stock or stock options pursuant to the Corporation's incentive compensation plans or programs, any issuance of stock (whether common or preferred, whether voting or non-voting, whether junior, pari passu, or senior to the Series B Cumulative Convertible Preferred Stock) other than Common Stock of the Corporation in an aggregate amount not exceeding five percent (5%) of the Common Stock of the Corporation issued and outstanding on the Original Issue Date, (C) any strategic alliance (other than a construction joint venture) involving a capital commitment by the Corporation exceeding $5 million, (D) any asset sale by the Corporation or lease as lessor exceeding $5 million (other than equipment dispositions in the normal course of business); (E) any redemption or amendment of the Rights (defined below) or the preferred stock of the Corporation issuable upon the exercise of such Rights, or any amendment of the Rights Agreement (defined below), and (F) any termination of (other than a termination upon expiration) or amendment to the management agreement between the Corporation and Tutor-Saliba Corporation; provided, however, that for purposes of this Section 8(b)(ii)(2), approval of the Executive Committee shall not be required for any decision by the Board of Directors to redeem the Series B Cumulative Convertible Preferred Stock pursuant to Section 6(a); (3) any change by the Corporation in the composition of the Executive Committee of the Board which results in members of such Committee selected by the holders of the Series B Cumulative Convertible Preferred Stock pursuant to Section 13(b) below being fewer than the number of directors that the holders of the Series B Cumulative Convertible Preferred Stock are then entitled to designate pursuant to that provision or the failure of the Corporation to nominate for director the persons designated by the holders of the Series B Cumulative Convertible Preferred Stock in accordance with Section 13(a) below; or (4) solely for purposes of the right to elect additional directors pursuant to Section 9(b) and not for purposes of any other Section, the failure of the Corporation to authorize, declare, and pay dividends payable in Series B Cumulative Convertible Preferred Stock when due in accordance with Section 3. - 11 - 24 (c) The date fixed for each such repurchase shall be (x) the anniversary of the Original Issue Date immediately succeeding the notice given pursuant to Section 7(a), or (y) the 121st day following the occurrence of the Special Default giving rise to a repurchase pursuant to Section 7(b). The place of payment shall be at an office or agency in Boston, Massachusetts fixed therefor by the Corporation or, if not fixed, at the principal executive office of the Corporation. (d) The Corporation shall, within 20 days of the occurrence of a Special Default, give a written notice thereof by registered or certified mail, postage prepaid, return receipt requested, to the holders of record of shares of the Series B Cumulative Convertible Preferred Stock, addressed to such holders at their last addresses as shown upon the stock transfer books of the Corporation. Each such notice shall specify the Special Default which has occurred and the date of such occurrence, the place or places of payment, the then effective conversion price pursuant to Section 8, the then effective repurchase price and the date the right of such holder to require such repurchase shall terminate. Any notice that is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder of shares of Series B Cumulative Convertible Preferred Stock receives such notice; and failure to give such notice by mail, or any defect in such notice, to the holders of any shares shall not affect the validity of the proceedings for the repurchase of any other shares of Series B Cumulative Convertible Preferred Stock. (e) (i) On the date fixed for any such repurchase, each holder of shares of Series B Cumulative Convertible Preferred Stock who elects to have shares of Series B Cumulative Convertible Preferred Stock held by it purchased shall surrender the certificate representing such shares to the Corporation at the place designated in such notice together with an election to have such purchase made and shall thereupon be entitled to receive payment therefor provided in this Section 7. If less than all the shares represented by any such surrendered certificate are repurchased, a new certificate shall be issued representing the unpurchased shares. Dividends with respect to the shares of Series B Cumulative Convertible Preferred Stock so purchased shall cease to accrue after the date so purchased, such shares shall no longer be deemed outstanding after such date and the holders thereof shall cease to be stockholders of the Corporation and all rights whatsoever with respect to the shares so purchased shall terminate. - 12 - 25 (ii) If the funds legally available for such purchase are not sufficient to purchase all the shares of Series B Cumulative Convertible Preferred Stock tendered to the Corporation for purchase, the Corporation shall purchase the greatest number of whole shares for which such funds are so available on a pro rata basis among all tendering holders based on the ratio of the number of shares tendered by each of them to the aggregate amount of all shares so tendered, and the certificates representing the unpurchased shares shall be deemed not to be surrendered for repurchase, such unpurchased shares shall remain outstanding and the rights of the holders of shares of Series B Cumulative Convertible Preferred Stock thereafter shall continue to be those of a holder of shares of the Series B Cumulative Convertible Preferred Stock; provided, however, the Corporation shall thereafter be required to repurchase all such remaining shares at the first date it has sufficient funds legally available for such purpose at the price it would have paid at the date such shares were actually tendered and the Corporation shall give notice as aforesaid to each holder whose shares were not repurchased for such reason and such holder shall thereafter have the right to elect to have such shares repurchased, such election to be made within 30 days of receipt of such notice. For purposes of this Section, the Corporation shall be deemed not to have sufficient funds legally available for any such purchase if the Board of Directors reasonably determines that immediately after such repurchase the Corporation would be insolvent. (iii) For so long as there remain shares of Series B Cumulative Convertible Preferred Stock that have been surrendered for repurchase in accordance with this Section 7 that have not been so repurchased by the Corporation: (1) the number of members of the Board of Directors shall be increased by such number as is necessary to allow the election of the directors specified in clause (2) of this Section, and (2) the holders of the Series B Cumulative Convertible Preferred Stock, voting separately as a class, shall have the right to elect an additional number of directors to the Board of Directors such that the Designated Directors (defined below in Section 13) who are serving on the Board of Directors, plus the directors elected by such holders voting as a class under this clause, constitute a majority of Board. The right of the holders of the Series B Cumulative Convertible Preferred Stock to vote for such additional directors shall terminate when shares of the Series B Cumulative Convertible Preferred Stock properly tendered for repurchase pursuant to this Section 7 have been repurchased. The term of office of all directors so elected shall terminate immediately upon the termination of the right of the holders of the Series B Cumulative Convertible Preferred Stock to vote for such additional directors, and the number of directors of the Board of Directors shall immediately thereafter be reduced. - 13 - 26 (iv) The foregoing right of the holders of the Series B Cumulative Convertible Preferred Stock with respect to the election of additional directors may be exercised at each annual meeting of stockholders or at any special meeting of stockholders held for such purpose. If the right to elect additional directors shall have accrued to the holders of the Series B Cumulative Convertible Preferred Stock more than thirty (30) days preceding the date established for the next annual meeting of stockholders, the President of the Corporation shall, within five (5) days after the delivery to the Corporation at its principal office of a written request for a special meeting signed by the holders of at least 10% of all outstanding shares of the Series B Cumulative Convertible Preferred Stock, call a special meeting of the holders of the Series B Cumulative Convertible Preferred Stock to be held as promptly as practicable after the delivery of such request for the purpose of electing such additional directors. (v) The holders of the Series B Cumulative Convertible Preferred Stock voting as a class shall have the right to remove with or without cause at any time and replace any directors such holders shall have elected pursuant to this Section 7 and the holders of each other class of stock of the Corporation shall not have the right to remove any such directors. 8. Conversion. (a) Right of Conversion. Each share of Series B Cumulative Convertible Preferred Stock, whether issued originally or in-kind as a dividend payment, shall be convertible at the option of the holder thereof, at any time (provided, however, that where the Corporation has elected to redeem such stock, the option of the holder described in this section must be exercised prior to the close of business on the business day prior to the date fixed for redemption of such share as herein provided), into fully paid and nonassessable shares of Common Stock and such other securities and property as hereinafter provided, at the rate of that number of shares of Common Stock for each full share of Series B Cumulative Convertible Preferred Stock that is equal to the Liquidation Preference plus an amount in cash equal to the accrued and unpaid dividends thereon, whether or not authorized or declared, divided by the conversion price applicable per share of Common Stock. For purposes of this Section 8(a), the "conversion price" applicable per share of Common Stock shall initially be equal to Nine Dollars and Sixty-Eight Cents ($9.68), and shall be adjusted from time to time after the Original Issue Date in accordance with the provisions of this Section 8. - 14 - 27 (b) Conversion Procedures. (i) Any holder of shares of Series B Cumulative Convertible Preferred Stock desiring to convert such shares into Common Stock shall surrender the certificate or certificates representing such shares of Series B Cumulative Convertible Preferred Stock at the office of the transfer agent for the Series B Cumulative Convertible Preferred Stock, which certificate or certificates, if the Corporation shall so require, shall be duly endorsed to the Corporation or in blank, or accompanied by proper instruments of transfer to the Corporation or in blank, accompanied by irrevocable written notice to the Corporation that the holder elects so to convert such shares of Series B Cumulative Convertible Preferred Stock and specifying the name or names (with address or addresses) in which a certificate or certificates evidencing shares of Common Stock are to be issued. (ii) Subject to Section 8(k) hereof, no payments or adjustments in respect of dividends on shares of Series B Cumulative Convertible Preferred Stock surrendered for conversion or on account of any dividend on the Common Stock issued upon conversion shall be made upon the conversion of any shares of Series B Cumulative Convertible Preferred Stock. (iii) The Corporation shall, as soon as practicable after such deposit of certificates representing shares of Series B Cumulative Convertible Preferred Stock accompanied by the written notice and compliance with any other conditions herein contained, deliver at such office of the transfer agent to the person for whose account such shares of Series B Cumulative Convertible Preferred Stock were so surrendered or to the nominee or nominees of such person certificates representing the number of full shares of Common Stock to which such person shall be entitled as aforesaid, together with a cash adjustment in respect of any fraction of a share of Common Stock as hereinafter provided. Subject to the following provisions of this paragraph, such conversion shall be deemed to have been made as of the date of such surrender of the shares of Series B Cumulative Convertible Preferred Stock to be converted, and the person or persons entitled to receive the Common Stock deliverable upon conversion of such Series B Cumulative Convertible Preferred Stock shall be treated for all purposes as the record holder or holders of such Common Stock on such date. (c) Adjustment of Conversion Price. The conversion price at which a share of Series B Cumulative Convertible Preferred Stock is convertible into Common Stock shall be subject to adjustment from time to time as follows: - 15 - 28 (i) (1) In case the Corporation shall pay or make a dividend or other distribution on its Common Stock exclusively in Common Stock or shall pay or make a dividend or other distribution on any other class of stock of the Corporation which dividend or distribution includes Common Stock or shall exchange outstanding Rights (as defined in Section 8(j) hereof) for shares of Common Stock, the conversion price in effect at the opening of business on the day following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution or to exchange such Rights shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constituting such dividend or other distribution or exchange, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. (2) In case the Corporation shall issue or otherwise sell or distribute shares of Common Stock for a consideration per share in cash or property less than the most recent Closing Price prior to the time of such issuance (and, if shares are issued, sold, or distributed pursuant to the exercise or conversion of options, warrants, convertible securities, or other rights, the exercise or conversion price thereof when such options, warrants, convertible securities, or rights were granted or issued was less than the Closing Price (defined below in Section 8(h) at the time of issuance of such options, warrants, convertible securities, or other rights), the conversion price then in effect shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding immediately prior to such issuance, sale or distribution plus the number of shares of Common Stock which the aggregate consideration received by the Corporation for such issuance, sale or distribution (such consideration, if other than cash, as determined by the Board of Directors, whose determination shall be conclusive and described in a vote of the Board of Directors) would purchase at the current market price per share and the denominator shall be the number of shares of Common Stock outstanding immediately after giving effecting to such issuance, sale or distribution. (ii) In case the Corporation shall pay or make a dividend or other distribution on its Common Stock consisting exclusively of, or shall otherwise issue to all or substantially all holders of its Common Stock, rights or warrants entitling the holders thereof to subscribe for or purchase shares of - 16 - 29 Common Stock at a price per share less than the then current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the date fixed for the determination of stockholders entitled to receive such rights or warrants, the conversion price in effect at the opening of business on the day following the date fixed for such determination shall be reduced by multiplying such conversion price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock which the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such current market price and the denominator shall be the number of shares of Common Stock outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase, such reduction to become effective immediately after the opening of business on the day following the date fixed for such determination. In case any rights or warrants referred to in this subparagraph (ii) in respect of which an adjustment shall have been made shall expire unexercised, the conversion price shall be readjusted at the time of such expiration to the conversion price that would have been in effect if no adjustment had been made on account of the distribution or issuance of such expired rights or warrants. For the purposes of this Section 8(c)(ii), if both a Distribution Date and a Section 11(a)(ii) Event (as such terms are defined in the Rights Agreement by and between the Corporation and the First National Bank at Boston, dated as of September 23, 1988, as amended (the "Rights Agreement")) shall have occurred, then the later to occur of such events shall be deemed to constitute an issuance of rights to purchase shares of Common Stock. (iii) In case outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall each be combined into a smaller number of shares of Common Stock, the conversion price in effect at the opening of business on the day following the day upon which such combination becomes effective shall be proportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision or combination becomes effective. (iv) (1) In case the Corporation shall, by dividend or otherwise, make a Section 8(c)(iv) Distribution (defined below in Section 8(h)) to - 17 - 30 all or substantially all holders of its Common Stock, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately following the close of business on the Determination Date (as defined in Section 8(h)) by a fraction of which the numerator shall be the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Determination Date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors), on the date of such effectiveness, of the portion of the Section 8(c)(iv) Distribution so distributed applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Determination Date. If the Board of Directors so determines as aforesaid the fair market value of any distribution for purposes of this subparagraph (iv) by reference to the actual or when-issued trading market for any Securities comprising such distribution, it must in doing so consider the prices in such market over the same period used in computing the current market price per share of Common Stock pursuant to subparagraph (vii) of this Section 8(c). (2) Notwithstanding the foregoing, if the Corporation elects to reserve, for distribution to the holders of the Series B Cumulative Convertible Preferred Stock upon the conversion of the shares of Series B Cumulative Convertible Preferred Stock, the evidences of the Corporation's indebtedness, shares of any class of stock, or assets that would have been distributed to the holders of the Series B Cumulative Convertible Preferred Stock if they had converted their shares into shares of Common Stock so that any such holder converting shares of Series B Cumulative Convertible Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such evidences of the Corporation's indebtedness, shares of any class of stock, or assets which such holder would have received if such holder had, immediately prior to the Determination Date for such distribution of securities, converted its shares of Series B Cumulative Convertible Preferred Stock into Common Stock, the fair market value of the Securities shall, for purposes of this subparagraph (iv), be deemed to be zero. (v) Subject to the last sentence of this subparagraph (v), in case the Corporation shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (excluding any cash representing an amount per share of capital stock of the Corporation to the extent such cash does not - 18 - 31 constitute an Extraordinary Equity Payment), the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the effectiveness of the conversion price reduction contemplated by this subparagraph (v) by a fraction of which the numerator shall be the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Determination Date less the amount of cash so distributed and not excluded as above provided applicable to one share of Common Stock and the denominator shall be such current market price per share of the Common Stock, such reduction to become effective immediately prior to the opening of business on the day following the Determination Date. Notwithstanding the foregoing, if the Corporation elects to reserve the cash to be distributed for distribution to the holders of the Series B Cumulative Convertible Preferred Stock upon the conversion of the shares of Series B Cumulative Convertible Preferred Stock so that any such holder converting shares of Series B Cumulative Convertible Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount of cash which such holder would have received if such holder had, immediately prior to the Determination Date for such distribution of cash, converted its shares of Series B Cumulative Convertible Preferred Stock into Common Stock, then the conversion price shall not be so reduced. (vi) In case a tender or exchange offer made by the Corporation or any subsidiary of the Corporation for all or any portion of the Corporation's Common Stock shall expire and such tender or exchange offer shall involve the payment by the Corporation or such subsidiary of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a resolution of the Board of Directors) at the last time (the "Expiration Time") tenders or exchanges may be made pursuant to such tender or exchange offer (as it shall have been amended) that exceeds the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Trading Day next succeeding the Expiration Time, the conversion price shall be reduced so that the same shall equal the price determined by multiplying the conversion price in effect immediately prior to the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tendered or exchanged shares) on the Expiration Time multiplied by the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as - 19 - 32 aforesaid) of the aggregate consideration payable to stockholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the "Purchased Shares") and (y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) on the Expiration Time and the current market price per share (determined as provided in subparagraph (vii) of this Section 8(c)) of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction to become effective immediately prior to the opening of business on the day following the Expiration Time. (vii) For purposes of any computation under this section, the current market price per share of Common Stock on any date shall be deemed to be the volume-weighted average trading price of the Common Stock for the five-day period before the earlier of the day in question and the "ex" date with respect to any issuance or distribution requiring such computation; provided, however, that for purposes of clause (3) of this paragraph, the current market price per share shall be deemed to be the volume-weighted average trading price of the Common Stock for the five-day period after the "ex date." For purposes of this subparagraph (vii), the term "ex" date, (1) when used with respect to any issuance or distribution, means the first date on which the Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution, (2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such market after the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer, means the first date on which the Common Stock trades regular way on such exchange or in such market after the Expiration Time of such offer. (viii) The Corporation may make such reductions in the conversion price, in addition to those required by subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of this Section 8(c), as it considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes. (ix) No adjustment in the conversion price shall be required unless such adjustment would require an increase or decrease of at least 1% in the conversion price; provided, however, that any adjustments which by - 20 - 33 reason of this subparagraph (ix) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. (x) Notwithstanding any other provision of this Section 8 and without implication that the contrary would otherwise be true, no issuance, dividend or distribution requiring adjustment of the conversion price pursuant to Section 8(c) hereof shall be deemed to have occurred in the event that, upon, following or in connection with the redemption or expiration of the Rights or the termination of the Rights Agreement or otherwise, the Corporation enters into a new agreement that is comparable in purpose and effect to the Rights Agreement (as determined by the Board of Directors, whose determination shall be conclusive) and distributes rights to purchase Preferred Stock (or other similar stock purchase rights under such agreement that are attached to the Common Stock) to the holders of Common Stock. (xi) Whenever the conversion price is adjusted as herein provided: (1) the Corporation shall compute the adjusted conversion price and shall prepare a certificate signed by the Treasurer of the Corporation setting forth the adjusted conversion price and showing in reasonable detail the acts upon which such adjustment is based, and such certificate shall forthwith be filed with the transfer agent for the Series B Cumulative Convertible Preferred Stock; and (2) a notice stating the conversion price has been adjusted and setting forth the adjusted conversion price shall forthwith be required, and as soon as practicable after it is required, such notice shall be mailed by the Corporation to all record holders of shares of Series B Cumulative Convertible Preferred Stock at their last addresses as they shall appear upon the stock transfer books of the Corporation. (d) No Fractional Shares. No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon conversion of Series B Cumulative Convertible Preferred Stock. If more than one certificate representing shares of Series B Cumulative Convertible Preferred Stock shall be surrendered for conversion at one time by the same holder, the number of full shares issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of Series B Cumulative Convertible Preferred Stock so surrendered. Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of any shares of Series B Cumulative - 21 - 34 Convertible Preferred Stock, the Corporation shall pay a cash adjustment in respect of such fractional interest in an amount equal to the same fraction of the market price per share of Common Stock (as determined by the Board of Directors or in any manner prescribed by the Board of Directors, which, so long as the Common Stock is listed on the Primary Exchange, shall be the reported last sale price regular way on the Primary Exchange) at the close of business on the day of conversion. (e) Reclassification, Consolidation, Merger, or Sale of Assets. If any capital reorganization or reclassification of the capital stock of the Corporation, or consolidation or merger of the Corporation with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected in such a way that holders of Common Stock shall be entitled to receive stock, securities, cash or other property with respect to or in exchange for Common Stock, then, as a condition of such reorganization, reclassification, consolidation, merger or sale, lawful and adequate provision shall be made whereby the holders of the Series B Cumulative Convertible Preferred Stock shall have the right to acquire and receive upon conversion of the Series B Cumulative Convertible Preferred Stock, which right shall be pari passu with the rights of holders of Parity Dividend Stock and senior to the rights of the holders of Junior Dividend Stock and Junior Liquidation Stock (but after and subject to the rights of holders of Senior Dividend Stock and Senior Liquidation Stock, if any), such shares of stock, securities, cash or other property issuable or payable (as part of the reorganization, reclassification, consolidation, merger or sale) with respect to or in exchange for such number of outstanding shares of Common Stock as would have been received upon conversion of the Series B Cumulative Convertible Preferred Stock at the conversion price then in effect, whether or not such stock is then convertible. The Corporation will not effect any such consolidation, merger or sale, unless prior to the consummation thereof the successor corporation (if other than the Corporation) resulting from such consolidation or merger or the corporation purchasing such assets shall assume by written instrument in reasonable and customary form mailed or delivered to the holders of the Series B Cumulative Convertible Preferred Stock at the last address of each such holder appearing on the books of the Corporation, the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to purchase. - 22 - 35 (f) Reservation of Shares; Transfer Taxes; Etc. (i) The Corporation shall at all times reserve and keep available, out of its authorized and unissued stock, solely for the purpose of effecting the conversion of the Series B Cumulative Convertible Preferred Stock, such number of shares of its Common Stock or Common Stock free of preemptive rights as shall from time to time be sufficient to effect the conversion of all shares of Series B Cumulative Convertible Preferred Stock from time to time outstanding. The Corporation shall from time to time, in accordance with the laws of the State of Massachusetts, increase the number of authorized shares of Common Stock if at any time the number of shares of authorized and unissued Common Stock shall not be sufficient to permit the conversion of all the then outstanding shares of Series B Cumulative Convertible Preferred Stock. (ii) If any shares of Common Stock required to be reserved for purposes of conversion of the Series B Cumulative Convertible Preferred Stock hereunder require registration with or approval of any governmental authority under any Federal or State law before such shares may be issued upon conversion, the Corporation will in good faith and as expeditiously as possible endeavor to cause such shares to be duly registered or approved, as the case may be. If the Common Stock is listed on the American Stock Exchange or any other national securities exchange or national quotation service, the Corporation will list and keep listed on such exchange, upon official notice of issuance, all shares of Common Stock issuable upon conversion of the shares of Series B Cumulative Convertible Preferred Stock. (iii) The Corporation shall pay any and all issue or other taxes that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of the Series B Cumulative Convertible Preferred Stock. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of Common Stock (or other securities or assets) in a name other than that in which the shares of Series B Cumulative Convertible Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Corporation the amount of such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. - 23 - 36 (g) Prior Notice of Certain Events. In case: (i) the Corporation shall declare or authorize a redemption or repurchase of in excess of five percent of the then outstanding shares of Common Stock; or (ii) the Corporation shall authorize the granting to all holders of Common Stock of rights or warrants to subscribe for or purchase any shares of stock of any class or of any other rights or warrants (other than pursuant to the Rights Agreement or, following the redemption or expiration of the Rights or the termination of the Rights Agreement, any new shareholder rights agreement that is comparable in purpose and effect to the Rights Agreement); or (iii) of any reclassification of Common Stock (other than a subdivision or combination of the outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Corporation is a party and for which approval of any stockholders of the Corporation shall be required, or of the sale or transfer of all or substantially all of the assets of the Corporation or of any compulsory share exchange whereby the Common Stock is converted into other securities, cash or other property; or (iv) of the voluntary or involuntary dissolution, liquidation or winding up of the Corporation; then the Corporation shall cause to be filed with the transfer agent for the Series B Cumulative Convertible Preferred Stock, and shall cause to be mailed to the holders of record of the Series B Cumulative Convertible Preferred Stock, at their last addresses as they shall appear upon the stock transfer books of the Corporation, at least fifteen days prior to the applicable record date hereinafter specified, a notice stating, as the case may be, (x) the record date (if any) for the purpose of such dividend, distribution, redemption, repurchase or granting of rights or warrants or, if no record date is to be set, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer, share - 24 - 37 exchange, dissolution, liquidation or winding up is expected to become effective, and the date, if any, as of which it is expected that holders of shares of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding up (but no failure to mail such notice or any defect therein or in the mailing thereof shall affect the validity of the corporate action required to be specified in such notice). (h) Definitions. The following definitions shall apply to terms used in this Section 8: (i) "Closing Price" on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place on such day, the average of the reported closing bid and asked prices regular way, in each case on the Primary Exchange, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of the Common Stock on the over-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similarly generally accepted reporting service, or if not so available in such manner, as furnished by any American Stock Exchange member firm selected from time to time by the Board of Directors of the Corporation for that purpose. (ii) "Determination Date" shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right to receive any cash, securities or other property or assets or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for determination of stockholders entitled to receive such cash, securities or other property or assets (whether such date is fixed by the Board of Directors or by statute, contract or otherwise). (iii) "Extraordinary Equity Payment" shall mean: (1) the declaration or payment on or after the Original Issue Date by the Corporation, or any of its subsidiaries of any dividend or distribution on any class or series of its stock other than: (A) any dividend or distribution from one subsidiary of the Corporation to a wholly-owned subsidiary of the Corporation or from a subsidiary of the Corporation to the Corporation; provided that all of such dividend paid or distribution made, net of applicable withholding taxes, is received by the Corporation, or such recipient subsidiary; (B) any regularly scheduled (whether or not overdue) periodic cash dividend on the $21.25 Preferred Stock and Series B - 25 - 38 Cumulative Convertible Preferred Stock in accordance with the terms thereof as in effect on the Original Issue Date; (C) any cash dividends on the Common Stock or other capital stock after September 1, 2001 that do not exceed in aggregate more than twenty-five percent (25%) of the Corporation's consolidated net income available for distribution to common shareholders (after preferred dividends); provided, however, that the Corporation shall have elected, for the preceding four fiscal quarters, to pay cash dividends on the Series B Cumulative Convertible Preferred Stock and shall have paid in full such dividends in cash when due; (2) any repurchases, redemptions, retirements or other acquisitions directly or indirectly by the Corporation or any of its subsidiaries on or after the Original Issue Date of any stock of the Corporation or any of its subsidiaries (other than a wholly-owned subsidiary) (other than redemptions or repurchases of the Series B Cumulative Convertible Preferred Stock in accordance with Sections 6 and 7). (iv) "Fundamental Change" shall mean the occurrence of any transaction or event in connection with a plan or agreement to which, in either case, the Corporation is a party pursuant to which all or substantially all of the shares of Common Stock shall be exchanged for, converted into, acquired for or constitute solely the right to receive cash, securities, property or other assets (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise); provided, however, in the case of a plan involving more than one such transaction or event, for purposes of adjustment of the conversion price, such Fundamental Change shall be deemed to have occurred when substantially all of the shares of Common Stock of the Corporation shall be exchanged for, converted into or acquired for or constitute solely the right to receive cash, securities, property or other assets, but the adjustment shall be based upon the consideration which the holders of Common Stock received in such transaction or event as a result of which more than 50% of the shares of Common Stock of the Corporation shall have been exchanged for, converted into, or acquired for or constitute solely the right to receive cash, securities, property or other assets; provided, further, that such term does not include (i) any such transaction or event in which the Corporation and/or any of its subsidiaries are the issuers of all the cash, securities, property or other assets exchanged, acquired or otherwise issued in such transaction or event, or (ii) any such transaction or event in which the holders of Common Stock receive securities of an issuer other than the Corporation if, immediately following such - 26 - 39 transaction or event, such holders hold a majority of the securities having the power to vote normally in the election of directors of such other issuer outstanding immediately following such transaction or other event. (v) "Section 8(c)(iv) Distribution" shall mean evidences of the Corporation's indebtedness, shares of any class of stock, or assets, including securities, but excluding any rights or warrants referred to in subparagraph (ii) of Section 8(c), excluding any dividend or distribution paid in cash, and excluding any dividend or distribution referred to in subparagraph (i) of Section 8(c). (vi) "Trading Day" shall mean a day on which the national securities exchange or the NASDAQ National Market System used to determine the Closing Price is open for the transaction of business or the reporting of trades. (i) Dividend or Interest Reinvestment Plans. Notwithstanding the foregoing provisions, the issuance of any shares of Common Stock pursuant to any plan providing for the reinvestment of dividends or interest payable on securities of the Corporation and the investment of additional optional amounts in shares of Common Stock under any such plan, and the issuance of any shares of Common Stock or options or rights to purchase such shares pursuant to any employee benefit plan or program of the Corporation or pursuant to any option, warrant, right or exercisable, exchangeable or convertible security issued or outstanding on the Original Issue Date (except as expressly provided in Section 8(c)(i) or 8(c)(ii) with respect to certain events under the Rights Agreement), and any issuance of Rights (defined below) or other rights referred to in Section 8(c)(x), shall not be deemed to constitute an issuance of Common Stock, options, warrants, rights, or exercisable, exchangeable or convertible securities by the Corporation or any of its subsidiaries to which any of the adjustment provisions described above in this Section 8 applies. There shall also be no adjustment of the conversion price in case of the issuance of any stock (or options, warrants, rights, or securities convertible into or exchangeable or exercisable for stock) of the Corporation except as specifically described in this Section 8. If any action would require adjustment of the conversion price pursuant to more than one of the provisions described above, only one adjustment shall be made and such adjustment shall be the amount of adjustment which has the highest absolute value to the holders of Series B Cumulative Convertible Preferred Stock. (j) Preferred Share Purchase Rights. So long as Preferred Share Purchase Rights, of the kind authorized and declared on September 23, 1988 and distributed by the Corporation in September 1988 as the same have been - 27 - 40 and may hereafter be amended ("Rights"), are attached to the outstanding shares of Common Stock of the Corporation, each share of Common Stock issued upon conversion of the shares of Series B Cumulative Convertible Preferred Stock prior to the earliest of any Distribution Date (as defined in the Rights Agreement), the date of redemption of the Rights or the date of expiration of the Rights shall be issued with Rights in an amount equal to the amount of Rights then attached to each such outstanding share of Common Stock. (k) Certain Additional Rights. In case the Corporation shall, by dividend or otherwise, authorize, declare or make a distribution on its Common Stock referred to in Section 8(c)(iv) or Section 8(c)(v), the holder of each share of Series B Cumulative Convertible Preferred Stock, upon the conversion thereof subsequent to the close of business on the date fixed for the determination of stockholders entitled to receive such distribution and prior to the effectiveness of the conversion price adjustment in respect of such distribution pursuant to Section 8(c)(iv) or Section 8(c)(v), shall be entitled to receive for each share of Common Stock into which such share of Series B Cumulative Convertible Preferred Stock is converted, the portion of the evidences of indebtedness, shares of stock, cash and assets so distributed applicable to one share of Common Stock; provided, however, that, at the election of the Corporation (whose election shall be evidenced by a vote of the Board of Directors) with respect to all holders so converting, the Corporation may, in lieu of distributing to such holder any portion of such distribution not consisting of cash or securities of the Corporation, pay such holder an amount in cash equal to the fair market value thereof (as determined by the Board of Directors, whose determination shall be conclusive and described in a vote of the Board of Directors). If any conversion of a share of Series B Cumulative Convertible Preferred Stock described in the immediately preceding sentence occurs prior to the payment date for a distribution to holders of Common Stock which the holder of the share of Series B Cumulative Convertible Preferred Stock so converted is entitled to receive in accordance with the immediately preceding sentence, the Corporation may elect (such election to be evidenced by a resolution of the Board of Directors) to distribute to such holder a due bill for the evidences of indebtedness, shares of stock, cash or assets to which such holder is so entitled; provided that such due bill (i) meets any applicable requirements of the principal national securities exchange or other market on which the Common Stock is then traded and (ii) requires payment or delivery of such evidences of indebtedness, shares of stock, cash or assets no later than the date of payment or delivery thereof to holders of Common Stock receiving such distribution. The rights provided in this Section 8(k) with respect to distribution referred to in Section 8(c)(iv) or - 28 - 41 Section 8(c)(v) shall be in lieu of, and not in addition to, the rights accorded to holders of Series B Cumulative Convertible Preferred Stock in those Sections. (l) Other. Notwithstanding any other provision in this Section 8 to the contrary, if the Corporation shall, by dividend or otherwise, authorize, declare or make a distribution on its Common Stock referred to in Section 8(c)(iv) and such distribution shall include shares of stock of one or more corporations that immediately prior to such distribution was or would have been a subsidiary (a "Spin-Off"), the holder of each share of Series B Cumulative Convertible Preferred Stock shall be entitled to receive its pro rata share of the securities distributed in the Spin-Off as if such holder had been the holder of record of the number of shares of Common Stock into which the Series B Cumulative Convertible Preferred Stock would be convertible (but for any restrictions on convertibility contained in this Certificate of Vote) as of the record date for such distribution. The rights provided in this Section 8(l) with respect to Spin-Offs shall be in lieu of, and not in addition to, the rights accorded to holders of Series B Cumulative Convertible Preferred Stock with respect to Spin-Offs in Section 8(c)(iv). 9. Voting Rights. (a) General. The holders of shares of Series B Cumulative Convertible Preferred Stock shall each initially have Twenty and Sixty-Five Thousand Six Hundred and Forty-Eight Hundred-Thousandths (20.65648) votes for each share held, which such shares shall be voted as a class with the holders of the Common Stock on all matters on which the Common Stock may vote, except as set forth below. Upon the occurrence of any event that causes an adjustment to the conversion price pursuant to Section 8(c), the number of votes possessed by each share of Series B Cumulative Convertible Stock shall be adjusted such that the number of votes possessed by each such share immediately after the event giving rise to the adjustment under Section 8(c) shall be equal to (x) the number of votes possessed by such share immediately preceding such event, multiplied by (y) the conversion price immediately preceding such event, divided by (z) the conversion price immediately after such event. Any shares of Series B Cumulative Convertible Preferred Stock held by the Corporation or any entity controlled by the Corporation shall not have voting rights hereunder and shall not be counted in determining the presence of a quorum. - 29 - 42 (b) Special Default Voting Rights. (i) Whenever a Special Default exists, (1) the number of members of the Board of Directors shall be increased by such number as is necessary to allow the election of the directors specified in clause (2), and (2) the holders of the Series B Cumulative Convertible Preferred Stock, voting separately as a class, shall have the right to elect an additional number of directors to the Board of Directors such that Designated Directors selected by the holders of the Series B Cumulative Convertible Preferred Stock, plus the directors elected by such holders voting as a class under this clause, constitute a majority of Board. Notwithstanding the foregoing sentence, the holders of the Series B Cumulative Convertible Preferred Stock (voting separately as a class) will not have the right to vote for additional directors pursuant to this Section 9(b) where (x) such holders have exercised their right to elect additional directors pursuant to Section 7(e)(iii), and (y) such additional directors continue to serve as such. The right of the holders of the Series B Cumulative Convertible Preferred Stock to vote for such additional directors shall terminate at the earlier to occur of (A) when such Special Default no longer exists or (ii) two years after the election of directors pursuant to clause (2) of the first sentence of this Section. The term of office of all directors so elected shall terminate immediately upon the termination of the right of the holders of the Series B Cumulative Convertible Preferred Stock to vote for such additional directors, and the number of directors of the Board of Directors shall immediately thereafter be reduced. (ii) The foregoing right of the holders of the Series B Cumulative Convertible Preferred Stock with respect to the election of additional directors may be exercised at each annual meeting of stockholders or at any special meeting of stockholders held for such purpose. If the right to elect directors shall have accrued to the holders of the Series B Cumulative Convertible Preferred Stock more than thirty (30) days preceding the date established for the next annual meeting of stockholders, the President of the Corporation shall, within five (5) days after the delivery to the Corporation at its principal office of a written request for a special meeting signed by the holders of at least 10% of all outstanding shares of the Series B Cumulative Convertible Preferred Stock, call a special meeting of the holders of the Series B Cumulative Convertible Preferred Stock to be held as promptly as practicable after the delivery of such request for the purpose of electing such additional directors. (iii) The holders of the Series B Cumulative Convertible Preferred Stock referred to above voting as a class shall have the right to remove - 30 - 43 with or without cause at any time and replace any directors such holders shall have elected pursuant to this Section 9(c) and the holders of each other class of stock of the Corporation shall not have the right to remove any such directors. (c) Class Voting Rights. So long as any shares of the Series B Cumulative Convertible Preferred Stock are outstanding, the Corporation shall not, directly or indirectly, without the affirmative vote or consent of the holders of at least 66 2/3% (unless a higher percentage shall then be required by applicable law or the Corporation's Articles) of all outstanding shares of the Series B Cumulative Convertible Preferred Stock voting separately as a class: (i) amend, alter or repeal any provision of the Articles, Certificate of Vote, or the bylaws of the Corporation, if such amendment, alteration or repeal would alter the contract rights, as expressly set forth herein, of the Series B Cumulative Convertible Preferred Stock or otherwise to adversely affect the rights of the holders thereof or the holders of the Common Stock, (ii) create, authorize or issue, or amend the terms of in a manner adversely affect the rights of the holders the Series B Cumulative Convertible Preferred Stock, or reclassify shares of any authorized stock of the Corporation into, or increase the authorized amount of, any Senior Dividend Stock, Senior Liquidation Stock, Parity Dividend Stock, or Parity Liquidation Stock or any security convertible into such senior or Parity Stock, or (iii) approve a Fundamental Change. 10. Outstanding Shares. For purposes of this Certificate of Vote, all shares of Series B Cumulative Convertible Preferred Stock issued by the Corporation shall be deemed outstanding except (i) from the date fixed for redemption pursuant to Section 6 hereof, all shares of Series B Cumulative Convertible Preferred Stock that have been so called for redemption under Section 6, to the extent provided thereunder; (ii) from the date of surrender of certificates representing shares of Series B Cumulative Convertible Preferred Stock, all shares of Series B Cumulative Convertible Preferred Stock converted into Common Stock or repurchased pursuant to Section 7 hereof; and (iii) from the date of registration of transfer, all shares of Series B Cumulative Convertible Preferred Stock held of record by the Corporation or any majority-owned subsidiary of the Corporation. - 31 - 44 11. Transfer Restrictions. (a) Legends on Series B Cumulative Convertible Preferred Stock and Common Stock. The certificates representing shares of Series B Cumulative Convertible Preferred Stock shall, unless otherwise agreed by the Corporation and the holders of any such certificates, bear a legend substantially to the following effect: "THE SHARES REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUABLE UPON CONVERSION OR EXCHANGE HEREOF MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, OR (ii) AN APPLICABLE EXEMPTION FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE PRECEDING SENTENCE MUST BE ACCOMPANIED BY AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO PERINI CORPORATION TO THE EFFECT THAT SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH SALE. IN ADDITION, THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE OR HYPOTHECATION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS FURTHER SUBJECT TO RESTRICTIONS WHICH ARE CONTAINED IN THE RESTATED ARTICLES OF ORGANIZATION OF PERINI CORPORATION, IN THE CERTIFICATE OF VOTE GOVERNING THESE SHARES AND IN A STOCK PURCHASE AGREEMENT DATED AS OF JULY 24, 1996, AS AMENDED, A COPY OF EACH OF WHICH IS ON FILE WITH PERINI CORPORATION AND WILL BE FURNISHED BY THE CORPORATION TO THE STOCKHOLDER ON REQUEST AND WITHOUT CHARGE." (b) Transfer Agent Requirements. The transfer agent (which may be the Corporation) for the Series B Cumulative Convertible Preferred Stock shall not be required to accept for registration of transfer any shares of Series B Cumulative Convertible Preferred Stock bearing the legend contained in paragraph (a) above, except upon presentation of evidence satisfactory to transfer agent that the restrictions on transfer of shares of the Series B Cumulative Convertible Preferred Stock referred to in the legend in paragraph (a) have been - 32 - 45 complied with, all in accordance with such reasonable regulations as the Corporation may from time to time agree with the transfer agent for shares of the Series B Cumulative Convertible Preferred Stock. 12. Status of Acquired Shares. Shares of Series B Cumulative Convertible Preferred Stock redeemed or repurchased by the Corporation, received upon conversion pursuant to Section 8 or otherwise acquired by the Corporation will be restored to the status of authorized but unissued shares of Preferred Stock, without designation as to class, and may thereafter be issued, but not as shares of Series B Cumulative Convertible Preferred Stock. 13. Special Covenants. (a) Nomination of Directors. Effective as of the Original Issue Date, the Corporation shall elect to the board of directors three directors designated by the holders of such stock (such directors, together with their replacements as provided below, the "Designated Directors"), one of whom shall be a Class I director, one of whom shall be a Class II director, and one of whom shall be a Class III director. The holders of a majority of the Series B Cumulative Convertible Preferred Stock shall designate the classes of such initial Designated Directors. (i) In the event that any Designated Director shall resign, be unable to serve, or be removed (a "Replaced Designated Director"), the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall have the right to designate a replacement to serve as Designated Director until the next meeting of shareholders at which directors of the same class as the Replaced Designated Director are elected. Any Designated Director may be removed from the Board, with or without cause, by the holders of a majority of the Series B Cumulative Convertible Preferred Stock. (ii) Except as provided below, at any time when the term of a Designated Director shall have ended and there shall be a meeting of shareholders of the Corporation to elect directors, the Corporation shall nominate for election to the board of directors, as a successor to any Designated Director serving pursuant to Section 13(a) or clause (i) of such provision, such person as is designated to be a Designated Director by the holders of a majority of the Series B Cumulative Convertible Preferred Stock. (iii) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion - 33 - 46 Shares (defined below) representing more than sixty-six and two-thirds percent (66-2/3%) and less than or equal to eighty percent (80%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to two. If there are then more than two Designated Directors serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director. (iv) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than eighty percent (80%) and less than or equal ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to one. If there is then more than one Designated Director serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove all but one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director(s). (v) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), there shall be no Designated Directors and any Designated Directors then serving on the board shall be removed, and their terms in office shall immediately expire, without any further action of the holders of such stock. (vi) The right to nominate directors pursuant to this provision is in addition to, and not in limitation of, any other rights and powers of the Series B Cumulative Convertible Preferred Stock. Directors nominated by the holders of the Series B Cumulative Convertible Preferred Stock in their capacity as holders of capital stock of the Corporation and not pursuant to clause (i), (ii), or (iii) above are not Designated Directors for purposes of this Certificate of Vote. (vii) The vote of the holders of Series B Cumulative Convertible Preferred Stock referred to in this Section may be exercised at a - 34 - 47 meeting of such holders or by written consent of holders with the requisite percentage of the voting power outstanding. (viii) Upon the reasonable request of the Corporation, the holders of the Series B Cumulative Convertible Preferred Stock shall certify in writing to the Corporation their holding of Conversion Shares. (ix) For purposes of this Section: (1) "voting power" shall mean the number of votes each such share possesses in the election of directors; and (2) "Conversion Shares" shall mean the shares of Common Stock which are both (A) issuable or issued upon conversion of the Series B Cumulative Convertible Preferred Stock pursuant to the terms of this Certificate of Vote of Directors, and (B) held by a person who either (x) acquired the shares of the Series B Cumulative Convertible Preferred Stock from which the shares referred to in clause (A) of this definition were converted and has held such Common Stock continuously thereafter, or (y) acquired the shares referred to in clause (A) of this definition from a person referred to in clause (B)(x) of this definition through a distribution to the partners by, or dissolution of, a partnership. (b) Appointment to Executive Committee. At any time at which the holders of the Series B Cumulative Convertible Preferred Stock shall have the right to nominate directors for election to the board pursuant to Section 13(a) hereof, such holders shall also have the right to designate a like number of persons from among the members of the board of directors to be members of the Executive Committee of the board (the "Designated Executive Committee Members"). In the event that any Designated Executive Committee Member shall resign, be unable to serve, or be removed, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall have the right to designate a replacement Designated Executive Committee Member. Any Designated Executive Committee Member may be removed from the Executive Committee, with or without cause, by the holders of a majority of the Series B Cumulative Convertible Preferred Stock. (c) Approval of Certain Actions. Neither the Corporation nor the Board shall take any of the following actions without the approval of a majority of the members of the Executive Committee of the Board: (A) any borrowing or guarantee by the Corporation exceeding $15 million, (B) except for - 35 - 48 issuance of stock or stock options pursuant to (x) the Corporation's incentive compensation plans and programs, (y) any warrants outstanding on the Original Issue Date, or (z) the Rights, any issuance of stock (whether common or preferred, whether voting or non-voting, whether junior, pari passu, or senior to the Series B Cumulative Convertible Preferred Stock) other than Common Stock in an aggregate amount not exceeding five percent (5%) of the Common Stock issued and outstanding on the Original Issue Date, (C) any strategic alliance (other than a construction joint venture) involving a capital commitment by the Corporation exceeding $5 million, (D) any asset sale by the Corporation or lease by it as lessor exceeding $5 million (other than equipment dispositions in the normal course of business); (E) any redemption or amendment of the Rights or the preferred stock of the Corporation issuable upon the exercise of such Rights, or any amendment of the Rights Agreement; and (F) any termination of (other than a termination upon expiration) or amendment to the management agreement between the Corporation and Tutor-Saliba Corporation; provided, however, that for purposes of this Section 13(c), approval of the Executive Committee shall not be required for any decision by the Board of Directors to redeem the Series B Cumulative Convertible Preferred Stock pursuant to Section 6(a). Notwithstanding the foregoing sentence, the board of directors of the Corporation may take any of the actions specified in the preceding sentence if, after having consulted with and considered the advice of outside counsel, it has reasonably determined in good faith that the failure of the board to take such action would be likely to cause the members of such board to breach their fiduciary duties under applicable law. 14. Severability of Provisions. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or - 36 - 49 decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law. - 37 - 50 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT dated as of _____________ ___, 1996 between PERINI CORPORATION, a Massachusetts corporation (together with its successors, the "Company"), PB CAPITAL PARTNERS, L.P. ("PB"), UNION LABOR LIFE INSURANCE COMPANY SEPARATE ACCOUNT P ("Account P" and, together with PB, the "Initial Stockholders"). WHEREAS, as required by the terms and conditions of the Stock Purchase Agreement dated as of July 24, 1996, as amended (the "Stock Agreement"), among the Company, PB, and Richard C. Blum & Associates, L.P. ("RCBA"), the Company shall issue to PB on the Closing (as defined in the Stock Agreement), the Series B Preferred Stock (as defined herein) which such stock is convertible into common stock of the Company, par value $1.00 per share; WHEREAS, PB -- with the Company's consent -- has assigned its rights and obligations under the Stock Agreement to acquire a portion of the Series B Preferred Stock to Account P, and Account P has accepted such assignment; WHEREAS, the Company has agreed with the Initial Stockholders, for their benefit and for the benefit of the other holders of the Series B Preferred Stock and holders of Conversion Shares (as defined in the Stock Agreement) to provide certain rights as set forth herein; NOW THEREFORE the parties hereto agree as follows: ARTICLE I DEFINITIONS SECTION 1.1. Definitions. Unless otherwise defined herein, the following terms used in this Agreement shall have the meanings specified below. "Account P" has the meaning set forth in the introductory paragraph hereof. "Affiliate" means, with respect to any Person, any of (i) a director or executive officer of such Person, (ii) a spouse, parent, sibling or descendant of such Person (or a spouse, parent, sibling or descendant of any director or executive officer of such Person) and (iii) any other Person that, directly or indirectly, controls, or is controlled by or is under common control with such Person. For the purpose of this definition, "control" (including the terms "controlling", "controlled by" and "under common control with"), as used with respect to any Person, means the possession, 51 directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities or by contract or agency or otherwise. "Business Day" means a day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close. "Common Stock" means the common stock, par value $1.00 per share, of the Company. "Company" has the meaning set forth in the introductory paragraph hereof. "Conversion Shares" means (i) any shares of Common Stock or other securities issued or issuable upon the conversion of any shares of Series B Preferred Stock; (ii) the shares of Common Stock or other securities issued to PB as a participation fee in connection with PB's purchase of a 100% participation interest in a $10,000,000 extension of credit to the Company pursuant to the Bridge Credit Agreement dated as of February 26, 1996 among Perini Corporation ("Perini"), the Bridge Banks listed in the Bridge Credit Agreement, and Morgan Guaranty Trust Company of New York, as Agent, as amended through November __, 1996; or (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 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. "Deferral Period" has the meaning set forth in Section 2.1(d). "Effectiveness Period" means the period commencing on the date hereof and ending on the date that all Conversion Shares shall have ceased to be Registrable Securities. "Exchange Act" means the Securities Exchange Act of 1934, or any successor Federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Exchange Act of 1934 shall include a reference to the comparable section, if any, of any such successor Federal statute. "Filing Date" has the meaning set forth in Section 2.1(a). "Initial Stockholders" has the meaning set forth in the introductory paragraph hereof. 2 52 "Initial Shelf Registration" has the meaning set forth in Section 2.1(a). "Initiating Holders" has the meaning set forth in Section 2.1(a) hereof. "Managing Underwriters" means the investment banking firm or firms that shall manage or co-manage an Underwritten Offering. "Notice Holder" means a holder of Registrable Securities who has given notice of intention to distribute such holder's Registrable Securities in accordance with Section 2.1(d). "PB" has the meaning set forth in the introductory paragraph hereof. "Person" means an individual, a corporation, a partnership, a limited liability partnership, a limited liability company, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. "Prospectus" means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. "Public Sale" means any sale of Common Stock to the public pursuant to an offering registered under the Securities Act or to the public through a broker, dealer or market maker pursuant to the provisions of Rule 144 (or any successor provision then in effect) adopted under the Securities Act. "Registrable Securities" means any Conversion Shares until the date (if any) when (i) such Conversion Shares shall have been transferred or exchanged and new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company or (ii) if requested to do so, the Company would be required to deliver certificates for such Conversion Shares not bearing a legend restricting further transfer, and, in each case, subsequent disposition of such Conversion Shares shall not require registration or qualification under the Securities Act or any similar state law then in force. "Registration Statement" means any registration statement of the Company which covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material 3 53 incorporated by reference or deemed to be incorporated by reference in such registration statement. "Restricted Securities" means the Series B Preferred Stock, the Conversion Shares and any securities obtained upon exchange for or upon conversion or transfer of or as a distribution on Series B Preferred Stock, the Conversion Shares or any such securities; provided that particular securities shall cease to be Restricted Securities when such securities shall have (x) been disposed of pursuant to a Public Sale, (y) been otherwise transferred or exchanged and new certificates for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or any similar state law then in force or (z) ceased to be outstanding. "Rule 144" means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. "Rule 144A" means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. "SEC" means the Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. "Securities Act" means the Securities Act of 1933, or any similar Federal statute, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. Reference to a particular section of the Securities Act of 1933 shall include a reference to the comparable section, if any, of any such similar Federal statute. "Selling Period" has the meaning set forth in Section 2.1(d). "Series B Preferred Stock" means the Series B Cumulative Convertible Preferred Stock originally issued to the Initial Stockholders in accordance with the Stock Agreement, as such stock may be transferred or otherwise assigned, but only to the extent not theretofore converted, redeemed or expired in accordance with their respective terms. "Series B Securityholder" means at any time any Stockholder or any holder of Conversion Shares. "Shelf Registration" has the meaning set forth in Section 2.1(a). "Special Counsel" means any law firm retained from time to time by the holders of a majority of the Registrable Securities to be sold pursuant to a Registration 4 54 Statement or during any Selling Period, as shall be specified by such holders to the Company; provided that at no time there shall be more than one Special Counsel the fees and expenses of which will be paid by the Company pursuant to Section 2.4. "Stock Agreement" has the meaning set forth in the recitals. "Subsequent Shelf Registration" has the meaning set forth in Section 2.1(b). "Stockholder" means a holder of Series B Preferred Stock. "Underwritten Offering" means a registration in which Registrable Securities are sold or to be sold to one or more underwriters for reoffering to the public. ARTICLE II REGISTRATION RIGHTS SECTION 2.1 Shelf Registration. (a) As soon as practicable but in any event not later than the date (the "Filing Date") that is sixty (60) days after receipt by the Company of a written request by the holder or holders of a majority of all outstanding Conversion Shares and Series B Preferred Stock (such majority determined, for purposes of this Section 2.1, based on the aggregate number of Conversion Shares then outstanding plus the number of Conversion Shares into which any outstanding shares of Series B Preferred Stock are then convertible) (the "Initiating Holders"), the Company shall prepare and file with the SEC a Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration") registering the resale from time to time by the holders thereof of all of the Registrable Securities upon and following conversion of the Series B Preferred Stock (the "Initial Shelf Registration"). The Registration Statement for any Shelf Registration shall be on Form S-3 or another appropriate form permitting registration of such Registrable Securities for resale by such holders in the manner or manners designated by them (including, without limitation, one or more Underwritten Offerings). The Company shall use its reasonable efforts to cause the Initial Shelf Registration to become effective under the Securities Act as promptly as is practicable and to keep the Initial Shelf Registration continuously effective under the Securities Act until the end of the Effectiveness Period. (b) If the Initial Shelf Registration or any Subsequent Shelf Registration (as defined below) ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities shall have been sold or shall have ceased to be Registrable Securities), the Company shall use all 5 55 reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty days of such cessation of effectiveness amend the Shelf Registration in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, or file an additional Shelf Registration covering all of the Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company shall use all reasonable efforts to cause the Subsequent Shelf Registration to become effective as promptly as is practicable after such filing and to keep such Registration Statement continuously effective until the end of the Effectiveness Period. (c) The Company shall supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration, if required by the Securities Act, or if reasonably requested by any holder of the Registrable Securities covered by such Registration Statement or by any Managing Underwriter of such Registrable Securities. (d) Each Series B Securityholder agrees that if it wishes to sell any Registrable Securities pursuant to a Shelf Registration and related Prospectus, it will do so only in accordance with this Section 2.1(d). Each holder of Registrable Securities agrees to give written notice to the Company at least six Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration, which notice shall specify the date on which such holder intends to begin such distribution and any information with respect to such holder and the intended distribution of Registrable Securities by such holder required to amend or supplement the Registration Statement with respect to such intended distribution of Registrable Securities by such holder; provided that no holder may give such notice unless such notice, together with notices given by other holders of Registrable Securities joining in such notice or giving similar notices, covers at least 30,000 Conversion Shares. As promptly as is practicable after the date such notice is provided, and in any event within five Business Days after such date, the Company shall either: (i) (A) prepare and file with the SEC a post-effective amendment to the Shelf Registration or a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or any other required document, so that such Registration Statement will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and so that, as thereafter delivered to purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (B) provide each Notice Holder a copy of any documents filed pursuant to Section 2.1(d)(i)(A); and (C) inform each Notice Holder that the Company has complied with its obligations in Section 2.1(d)(i)(A) and that the 6 56 Registration Statement and related Prospectus may be used for the purpose of selling all or any of such Registrable Securities (or that, if the Company has filed a post-effective amendment to the Shelf Registration which has not yet been declared effective, the Company will notify each Notice Holder to that effect, will use all reasonable efforts to secure the effectiveness of such post-effective amendment and will immediately so notify each Notice Holder when the amendment has become effective); each Notice Holder will sell all or any or such Registrable Securities pursuant to the Shelf Registration and related Prospectus only during the 45-day period commencing with the date on which the Company gives notice, pursuant to Section 2.1(d)(i)(C), that the Registration Statement and Prospectus may be used for such purpose (such 45-day period is referred to as a "Selling Period"); each Notice Holder agrees that it will not sell any Restricted Securities pursuant to such Registration Statement or Prospectus after such Selling Period without giving a new notice of intention to sell pursuant to Section 2.1(d) hereof and receiving a further notice from the Company pursuant to Section 2.1(d)(i)(C) hereof; or (ii) if, in the judgment of the Company, it is advisable to suspend use of the Prospectus for a period of time due to pending material corporate developments or similar material events that have not yet been publicly disclosed and as to which the Company believes public disclosure will be prejudicial to the Company, the Company shall deliver a certificate in writing, signed by its Chief Executive Officer, Chief Financial Officer or General Counsel, to the Notice Holders, the Special Counsel and the Managing Underwriters, if any, to the effect of the foregoing and, upon receipt of such certificate, each such Notice Holder's Selling Period will not commence until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in Section 2.1(d)(i)(A) hereof, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use all reasonable efforts to ensure that the use of the Prospectus may be resumed, and the Selling Period will commence, upon the earlier of (x) public disclosure of such pending material corporate development or similar material event or (y) a determination by the Company that, in the judgment of the Company, public disclosure of such material corporate development or similar material event would not be prejudicial to the Company. Notwithstanding the foregoing, the Company shall not under any circumstances be entitled to exercise its right under this Section 2.1(d) to defer the commencement of a Selling Period more than one time in any three-month period or two times in any twelve-month period, and the period in which a Selling Period is suspended shall not exceed fifteen days unless the Company shall deliver to such Notice Holders a second certificate to the effect set forth above, which shall have the effect of extending the period during which such Selling Period is deferred by up to an additional fifteen days, or such shorter period of time as is specified in such second 7 57 certificate. In no event shall the Company be permitted to extend the period during which such Selling Period is deferred from and after the date a Notice Holder provides notice to the Company in accordance with this Section 2.1(d) of its intention to distribute Registrable Securities (a "Deferral Period") beyond such 30-day period. SECTION 2.2. Registration Procedures. In connection with the Company's registration obligations under Section 2.1 hereof, the Company shall effect such registrations to permit the sale of the Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible: (a) Prepare and file with the SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof, and use its reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided, that before filing any such Registration Statement or Prospectus or any amendments or supplements thereto (other than documents that would be incorporated or deemed to be incorporated therein by reference and that the Company is required by applicable securities laws or stock exchange requirements to file) the Company shall furnish to the Initial Stockholders, the Initiating Holders, the Special Counsel and the Managing Underwriters of such offering, if any, copies of all such documents proposed to be filed, which documents will be subject to the review of the Initial Stockholders, the Initiating Holders, the Special Counsel and such Managing Underwriters, and the Company shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (other than such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein and that the Company is required by applicable securities laws or stock exchange requirements to file) to which the holders of a majority of the Registrable Securities covered by such Registration Statement, the Initial Stockholders, the Initiating Holders or the Special Counsel shall reasonably object in writing within two full Business Days. (b) Prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in Section 2.1; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented. 8 58 (c) Notify the selling Series B Securityholders, the Initial Stockholders, the Initiating Holders, the Special Counsel and the Managing Underwriters, if any, promptly, and (if requested by any such person) confirm such notice in writing, (i) when a Prospectus, any Prospectus supplement, a Registration Statement or a post-effective amendment to a Registration Statement has been filed with the SEC, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, and of the contents of such request, (iii) of the issuance by the SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) of the existence of any fact or happening of any event which makes any statement of a material fact in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which would require the making of any changes in the Registration Statement or Prospectus in order that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that the Company shall not be required to disclose such fact or event if such fact or event has not been publicly disclosed, and (vi) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate. (d) Use all reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment. (e) If reasonably requested by an Initial Stockholder, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the Initial Stockholders, the Initiating Holders, the Special Counsel, the Managing Underwriters, if any, or such holders, in connection with any offering of Registrable Securities, agree should be included therein as required by applicable law, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as promptly as is practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, that 9 59 the Company shall not be required to take any actions under this Section 2.2(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with or required by applicable law. (f) Furnish to each selling Series B Securityholder, the Special Counsel, the Initial Stockholders, and each Managing Underwriter, if any, without charge, at least one conformed copy of the Registration Statement or Statements and any amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing by such Series B Securityholder, Special Counsel, Initial Stockholders, or Managing Underwriter). (g) Deliver to each selling holder of Registrable Securities, the Special Counsel, the Initial Stockholders, and each Managing Underwriter, if any, in connection with any offering of Registrable Securities, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such persons may reasonably request; and the Company hereby consents to the use of such Prospectus or each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto. (h) Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling Series B Securityholders, the Managing Underwriters, if any, and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Series B Securityholder or Managing Underwriter reasonably requests in writing to the Company; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject. (i) Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of a selling holder of Registrable Securities, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the selling 10 60 holder or holders thereof or the Managing Underwriters, if any, to consummate the disposition of such Registrable Securities. (j) During any Selling Period (other than during a Deferral Period), immediately upon the existence of any fact or the occurrence of any event as a result of which a Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or a Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, promptly prepare and file a post-effective amendment to each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document (such as a Current Report on Form 8-K) that would be incorporated by reference into the Registration Statement so that the Registration Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and so that the Prospectus will not contain any untrue statement of a material fact or omit to state any material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, use all reasonable efforts to cause it to become effective as promptly as is practicable. (k) Enter into such agreements (including, in the event of an Underwritten Offering, an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including, in the event of an underwritten offering, those reasonably requested by the Managing Underwriters, if any, or the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into, and if the registration is an underwritten registration, (i) make such representations and warranties, subject to the Company's ability to do so, to the holders of such Registrable Securities and the underwriters with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any, Special Counsel and the holders of a majority of the Registrable Securities being sold) addressed to each of the underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Special Counsel and Managing Underwriters; (iii) obtain "comfort" 11 61 letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or any business acquired or to be acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to each of the Managing Underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters in connection with Underwritten Offerings; and (iv) deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold, the Special Counsel and the Managing Underwriters, if any, to evidence the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. (l) If requested in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make available for inspection by a representative of the holders of Registrable Securities being sold, any Managing Underwriter participating in any disposition of Registrable Securities, if any, and any attorney or accountant retained by such selling holders or underwriter, financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the executive officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, Managing Underwriter, attorney or accountant in connection with such disposition; subject to reasonable written assurances by each such person that such information will only be used in connection with matters relating to such Registration Statement. (m) Comply with all applicable rules and regulations of the SEC and make generally available to its securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of a Registration Statement, which statements shall cover said 12-month periods. (n) Cooperate with the selling Series B Securityholders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the selling Series B Securityholders may request. 12 62 (o) Use all reasonable efforts to provide a CUSIP number for the Registrable Securities not later than the effective date of the registration. (p) Cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or quotation system on which the Company's Common Stock is then listed no later than the date the Registration Statement is declared effective and, in connection therewith, to the extent applicable, to make such filings under the Exchange Act (e.g., the filing of a Registration Statement on Form 8-A) and to have such filings declared effective thereunder. (q) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. (r) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such Registration Statement. SECTION 2.3. Holder's Obligations. (a) Each holder of Registrable Securities agrees, by becoming a transferee of any Registrable Securities, that no holder of Registrable Securities shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a Prospectus relating thereto, unless such holder has furnished the Company with the notice required pursuant to Section 2.1(d) hereof (including the information required to accompany such notice) and, promptly after the Company's request, such other information regarding such holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request. The Company may exclude from such registration the Registrable Securities of any holder who does not furnish such information provided above for so long as such information is not so furnished. Each holder of Registrable Securities as to which any Registration Statement is being effected agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such holder not misleading. Any sale of any Registrable Securities by any holder shall constitute a representation and warranty by such holder that the information relating to such holder and its plan of distribution is as set forth in the Prospectus delivered by such holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to such holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to such holder or its plan of distribution necessary to make the statements in such Prospectus, in light of the circumstances under which they were made, not misleading. (b) The Company agrees (x) that if any holder of Registrable Securities shall send a written notice to the Company of an intended distribution of 13 63 Registrable Securities under the Shelf Registration pursuant to Section 2.1(d), the Company shall not to sell, make any short sale of, loan, grant any option for the purchase of, effect any public sale or distribution of or otherwise dispose of its equity securities or securities convertible into or exchangeable or exercisable for any of such securities during the period from first day of the applicable Selling Period until the date that is 90 days after the date when such holder shall have made such distribution of Registrable Securities under the Shelf Registration, as the holder or managing underwriter (in the case of an Underwritten Offering) shall advise the Company (provided that if the holder or managing underwriter shall fail to advise the Company of any such date prior to the end of the applicable Selling Period, such period shall end on the last day of the applicable Selling Period), except (i) as part of such registration, (ii) pursuant to registrations on Form S-4 or S-8 or any successor or similar forms thereto or (iii) as otherwise permitted by the managing underwriter of such offering (if any), and (y) to use all reasonable efforts to cause each holder of its equity securities or any securities convertible into or exchangeable or exercisable for any of such securities, in each case purchased from the Company at any time after the date of this Agreement (other than in a public offering) to agree not to sell, make any short sale of, loan, grant any option for the purchase of, effect any public sale or distribution of or otherwise dispose of such securities during such period except as part of such underwritten registration; provided that no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters other than representations and warranties regarding such holder and such holder's intended method of distribution. SECTION 2.4. Registration Expenses. All fees and expenses incident to the Company's performance of or compliance with this Agreement shall be borne by the Company whether or not any of the Registration Statements become effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (y) of compliance with federal securities or Blue Sky laws (including, without limitation, fees and disbursements of Special Counsel in connection with Blue Sky qualifications of the Registrable Securities laws of such jurisdictions as the Managing Underwriters, if any, or holders of a majority of the Registrable Securities being sold may designate), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities in a form eligible for deposit with The Depositary Trust Company and of printing prospectuses if the printing of prospectuses is requested by the Special Counsel or the holders of a majority of the Registrable Securities included in any Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) reasonable fees and disbursements of counsel for the Company and the Special Counsel in connection with the Registration, (v) fees and disbursements of all independent certified public accountants referred to in Section 2.2(k)(iii) hereof (including the expenses of any special audit and "comfort" letters required by or incident to such performance) and (vi) Securities Act liability insurance obtained by the Company in its sole discretion. In 14 64 addition, the Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange on which similar securities issued by the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company. Notwithstanding the provisions of this Section 2.4, each seller of Registrable Securities shall pay all registration expenses to the extent the Company is prohibited by applicable Blue Sky laws from paying for or on behalf of such seller of Registrable Securities. SECTION 2.5. Indemnification. (a) The Company agrees to indemnify and hold harmless each holder of Registrable Securities whose Registrable Securities are covered by any registration statement, its directors and officers and each other Person, if any, who controls such holder within the meaning of the Securities Act, against any losses, claims, damages or liabilities, joint or several, to which any such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Company will reimburse each such indemnified party for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such holder specifically for use in the preparation thereof. In addition, the Company shall indemnify any underwriter of such offering and each other Person, if any, who controls any such underwriter within the meaning of the Securities Act in substantially the same manner and to substantially the same extent as the indemnity herein provided to each Indemnified Party. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such holder or any such director, officer, underwriter or controlling person and shall survive the transfer of such securities by such holder. (b) Each prospective seller of Registrable Securities hereunder shall indemnify and hold harmless (in the same manner and to the same extent as set forth in 15 65 subdivision (a) of this Section 2.5) the Company, each director of the Company, each officer of the Company and each other person, if any, who controls the Company within the meaning of the Securities Act, with respect to any statement or alleged statement in or omission or alleged omission from such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereof, if such statement or alleged statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such seller specifically for use in the preparation of such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. Any such indemnity shall remain in full force and effect, regardless of any investigation made by or on behalf of the Company or any such director, officer or controlling person and shall survive the transfer of such securities by such seller. The amount payable by any prospective seller of Registrable Securities with respect to the indemnification set forth in this subsection (b) in connection with any offering of Registrable Securities will not exceed the amount of the gain realized by such prospective seller pursuant to such offering. (c) Promptly after receipt by an indemnified party of notice of the commencement of any action or proceeding involving a claim referred to in the preceding subdivisions of this Section 2.5, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party, give written notice to the latter of the commencement of such action; provided that the failure of any indemnified party to give notice as provided herein shall not relieve the indemnifying party of its obligations under the preceding subdivisions of this Section 2.5, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an indemnified party, unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying party similarly notified, to the extent that the indemnifying party may wish, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof. No indemnifying party shall, without the consent of the indemnified party, consent to entry of any judgment or enter into any settlement of any such action which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. No indemnified party shall consent to entry of any judgment or enter into any settlement of any such action the defense of which has been assumed by an indemnifying party without the consent of such indemnifying party. (d) If the indemnification provided for in the preceding subdivisions of this Section 2.5 is unavailable to an indemnified party in respect of any expense, loss, 16 66 claim, damage or liability referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such expense, loss, claim, damage or liability (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the holder or underwriter, as the case may be, on the other from the distribution of the Registrable Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the holder or underwriter, as the case may be, on the other in connection with the statements or omissions which resulted in such expense, loss, damage or liability, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the holder or underwriter, as the case may be, on the other in connection with the distribution of the Registrable Securities shall be deemed to be in the same proportion as (i) the product of the Liquidation Preference (as defined in Exhibit 1.7 of the Stock Agreement) multiplied by the number of shares of Series B Preferred Stock into which the Conversion Shares subject to the relevant distribution were converted, bears to (ii) the gain realized by the selling holder or the underwriting discounts and commissions received by the underwriter, as the case may be. The relative fault of the Company on the one hand and of the holder or underwriter, as the case may be, on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission to state a material fact relates to information supplied by the Company, by the holder or by the underwriter and parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided that the foregoing contribution agreement shall not inure to the benefit of any indemnified party if indemnification would be unavailable to such indemnified party by reason of the proviso contained in the first sentence of subdivision (a) of this Section 2.5, and in no event shall the obligation of any indemnifying party to contribute under this subdivision (d) exceed the amount that such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided for under subdivisions (a) or (b) of this Section 2.5 had been available under the circumstances. The Company and the holders of Registrable Securities agree that it would not be just and equitable if contribution pursuant to this subdivision (d) were determined by pro rata allocation (even if the holders and any underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph and subdivision (c) of this Section 2.5. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. 17 67 Notwithstanding the provisions of this subdivision (d), no holder of Registrable Securities or underwriter shall be required to contribute any amount in excess of the amount by which (i) in the case of any such holder, the gain realized by such holder from the sale of Registrable Securities or (ii) in the case of an underwriter, the total price at which the Registrable Securities purchased by it and distributed to the public were offered to the public exceeds, in any such case, the amount of any damages that such holder or underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. SECTION 2.6. Rule 144; Rule 144A; Form S-3. (a) The Company will file all reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the Commission thereunder and will take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such requirements. The Company further covenants that it will cooperate with any holder of Registrable Securities and take such further reasonable action as any holder of Registrable Securities may reasonably request (including, without limitation, making such reasonable representations as any such holder may reasonably request), all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A under the Securities Act. (b) For so long as any shares of Registrable Securities are restricted securities within the meaning of Rule 144(a)(3) under the Securities Act, the Company covenants and agrees that it shall, during any period in which it is not subject to Section 13 or 15(d) of the Exchange Act, make available to any holder of Registrable Securities in connection with the sale of such holder Registrable Securities and any prospective purchaser of Registrable Securities from such, in each case upon request, the information specified in, and meeting the requirements of, Rule 144A(d)(4) under the Securities Act. (c) The Company shall file the reports required to be filed by it under the Exchange Act and shall comply with all other eligibility requirements for use of Form S-3 set forth in the instructions to Form S-3 (other than Registration Requirement A.5). 18 68 ARTICLE III MISCELLANEOUS SECTION 3.1. Notices. All notices and other communications provided 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 3.1 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 3.1 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 3.1). SECTION 3.2. Binding Nature of Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto or their successors in interest, except as expressly otherwise provided herein. SECTION 3.3. Descriptive Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for reference only and shall not limit or otherwise affect the meaning hereof. SECTION 3.4. Specific Performance. Without limiting the rights of each party hereto to pursue all other legal and equitable rights available to such party for the other parties' failure to perform their obligations under this Agreement, the parties hereto acknowledge and agree that the remedy at law for any failure to perform their obligations hereunder would be inadequate and that each of them, respectively, shall be entitled to specific performance, injunctive relief or other equitable remedies in the event of any such failure. SECTION 3.5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND 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 19 69 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 3.1. 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 3.6. WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. SECTION 3.7. Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. SECTION 3.8. Severability. In the event that any one or more of the 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 3.9. Entire Agreement. This Agreement is intended by the 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 may be amended if, but only if, such amendment is in writing and is signed by the Company and Series B Securityholders owning, or having Series B Preferred Stock convertible into, at least a majority of shares of Common Stock either issued or issuable upon the conversion of all outstanding shares of Series B Preferred Stock, provided that no such amendment may adversely affect the rights of any Series B Securityholder unless signed by such Series B Securityholder. 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. 20 70 SECTION 3.11. No Third Party Beneficiaries. Nothing in this 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 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 Stock Agreement shall occur. SECTION 3.13. No Inconsistent Agreements. The Company has not entered into and will not enter into any registration rights agreement or similar arrangements the performance by the Company of the terms of which would in any manner conflict with, restrict or be inconsistent with the performance by the Company of its obligations under this Agreement. 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: -------------------- 73 Mount Wayte Avenue Framingham, MA 01701 Facsimile number: (508) 628-2960 21 71 PB CAPITAL PARTNERS, L.P. By: Richard C. Blum & Associates, L.P., its General Partner By: Richard C. Blum & Associates, Inc., its General Partner By: ------------------------ Name: Title: Address for Notices: -------------------- 909 Montgomery Street Suite 400 San Francisco, California 94133 Attn: Alexander Dean Facsimile Number: 415-434-3130 UNION LABOR LIFE INSURANCE COMPANY SEPARATE ACCOUNT P By: ------------------------------------- Name: Title: Address for Notices: -------------------- 111 Massachusetts Avenue, N.W. Washington, D.C. 20001 Attn: Michael P. Steed Facsimile Number: 202-682-7970 22 72 VOTING AGREEMENT THIS VOTING AGREEMENT, dated as of November __, 1996 (this "Agreement"), is by and among PB CAPITAL PARTNERS, L.P., a Delaware limited partnership ("PB"), PERINI CORPORATION, a Massachusetts corporation (the "Corporation"), DAVID B. PERINI ("D. Perini"), [PERINI MEMORIAL FOUNDATION (the "Foundation"),] BART PERINI ("B. Perini"), [DAVID B. PERINI TESTAMENTARY TRUST (the "Trust"),] Ronald Tutor ("Tutor"), and TUTOR-SALIBA CORPORATION ("Tutor-Saliba"). PB, D. Perini, the Foundation, B. Perini, the Trust, Tutor, and Tutor-Saliba are referred to collectively herein as the "Stockholders" and each individually as a "Stockholder." WHEREAS, each Stockholder is the record and beneficial owner of (1) that number of shares of Common Stock, par value $1.00 per share ("Common Stock"), (2) that number of Series B Cumulative Convertible Preferred Stock ("Series B Cumulative Convertible Preferred Stock"), and (3) that number of Series A Junior Participating Cumulative Preferred Stock ("Series A Junior Participating Stock") of the Corporation, set forth opposite such Stockholder's name on Exhibit A attached hereto (the Common Stock, Series B Cumulative Convertible Preferred Stock, and Series A Junior Participating Stock, together with any other series or classes of voting stock to be issued by the Corporation, collectively the "Perini Voting Stock"); and WHEREAS, pursuant to a "Stock Purchase and Sale Agreement, dated July 24, 1996, by and among PB, Richard C. Blum & Associates, L.P. ("RCBA"), and the Corporation (the "Stock Purchase Agreement"), the Corporation has agreed to sell to PB, and PB has agreed to purchase from the Corporation, 150,150 shares of Series B Cumulative Convertible Preferred Stock in consideration for the payment to the Corporation of $30,030,000.00; and WHEREAS, PB has made the execution of this Voting Agreement a condition to the purchase of the shares of Series B Cumulative Convertible Preferred Stock and regards this Voting Agreement as integral to the economic value of such securities; and WHEREAS, PB (together with certain of its assigns) are simultaneously purchasing such securities; and WHEREAS, in order to induce PB to enter into the Stock Purchase Agreement, the Stockholders desire to enter into this Agreement, which shall inure to the benefit of PB; 73 -2- NOW, THEREFORE, for and in consideration of $10.00 and the premises and mutual covenants and agreements hereinafter contained, the Stockholders hereby agree as follows: 1. Voting of Shares for Election of Directors. Each Stockholder hereby agrees to vote or cause to be voted all Perini Voting Stock owned or hereafter acquired by him or it, or over which he or it has voting control in such Stockholder's own right, in favor of the election to the Board of Directors of the representative designated by PB at the next annual or special meeting of stockholders at which directors will be elected("Meeting"), which Director shall serve until his successor is elected and qualified or until his earlier resignation or removal. At any time during the term of this Agreement, the Corporation shall cause the nomination for election to the Board of Directors of the representatives of PB designated in accordance with the Certificate of Vote, and shall call such Stockholders' meetings as may be necessary or requested by PB to effect any such election. The representatives designated by PB shall be reasonably satisfactory to the Corporation. 2. Term. This Agreement shall remain in force and effect until immediately after the holding of the next Meeting at which the Director designated pursuant to Section 1 is elected. 3. Changes in Common Stock. In the event that subsequent to the date of this Agreement any shares or other securities (other than any shares or securities of another corporation issued to the stockholders of the Corporation pursuant to a plan of merger) are issued on, or in exchange for, any of the shares of the Perini Voting Stock held by the Stockholders by reason of any stock dividend, stock split, consolidation of shares, reclassification, or consolidation involving the Corporation, such shares or securities shall be deemed to be Perini Stock for purposes of this Agreement. 4. Representations of Stockholders. Each Stockholder hereby represents and warrants that (i) he owns and has the right to vote the number of shares of the Perini Voting Stock set forth opposite his name on Exhibit A attached hereto, (ii) each of the Stockholders has full power to enter into this Agreement and has not, prior to the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement that would conflict with the purposes or provisions of this Agreement, and (iii) he will not take any action inconsistent with the purposes and provisions of this Agreement. 5. Enforceability; Validity. Irreparable damage would result in the event that the provisions of this Agreement are not specifically enforced. Therefore, the rights to, or obligations of, the parties hereto shall be enforceable in a court of equity by a decree of specific performance and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies, and all other remedies provided for in this Agreement, shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agreement or otherwise. 74 -3- 6. Benefit. Subject to the provisions of Section 9, this Agreement shall be binding upon, and inure to the benefit of, the respective parties hereto and their successors, assigns, and transferees. 7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made and to be performed entirely within the Commonwealth of Massachusetts 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 9. Legending. Upon the execution of this Agreement, each certificate or other instrument for Perini Voting Securities now registered or to be issued in the name of the Stockholders shall be endorsed by the Secretary of the Corporation as follows: "This certificate is subject to that certain Voting Agreement dated as of November __, 1996 by and among the Corporation and certain of the holders of its voting stock, a copy of which is on file in the office of the Corporation and is available upon request of any Stockholder without charge." Provided, however, that each of the Trust and the Foundation shall be entitled to withhold from the legending required by this Section up to ten percent (10%) of its Perini Voting Stock and that such stock -- if disposed of to an unaffiliated third party prior to the Meeting -- shall not be subject to this Voting Agreement. 10. Terms. All terms not otherwise defined in this Agreement shall have the meaning set forth in the Stock Purchase Agreement. IN WITNESS WHEREOF, the Stockholders have executed this Agreement as of the date first above written. PERINI CORPORATION PB CAPITAL PARTNERS, L.P. - ----------------------------------- ------------------------- By: ----------------------------- Its: ---------------------------- 75 -4- DAVID B. PERINI [PERINI MEMORIAL FOUNDATION - ---------------------------------- ----------------------------------- By: ------------------------------ Its: ] ------------------------------ BART PERINI [DAVID B. PERINI TESTAMENTARY TRUST - ---------------------------------- ----------------------------------- By: ------------------------------ Its: ] ------------------------------ RONALD TUTOR TUTOR-SALIBA CORP. - ---------------------------------- ----------------------------------- By: ------------------------------ Its: ------------------------------ 76
EXHIBIT A --------- ================================================================================================================================ SERIES B CUMULATIVE SERIES A JUNIOR PARTICIPATING COMMON STOCK CONVERTIBLE PREFERRED STOCK PREFERRED STOCK ================================================================================================================================ PB Capital Partners, L.P. - -------------------------------------------------------------------------------------------------------------------------------- David Perini - -------------------------------------------------------------------------------------------------------------------------------- David Perini Foundation - -------------------------------------------------------------------------------------------------------------------------------- Bart Perini - -------------------------------------------------------------------------------------------------------------------------------- Perini Testamentary Trust - -------------------------------------------------------------------------------------------------------------------------------- Tutor-Saliba Corporation - -------------------------------------------------------------------------------------------------------------------------------- Ronald Tutor ================================================================================================================================
77 November 8, 1996 Perini Corporation 73 Mt. Wayte Avenue Framingham, MA 0 1 701 Richard C. Blum & Associates, L.P. 909 Montgomery Street, Suite 400 San Francisco, CA 94133 PB Capital Partners, L.P. 909 Montgomery Street, Suite 400 San Francisco, CA 94133 Re: Closing Conditions to Stock Purchase Agreement Dear Gentlemen: This Letter Agreement ("Agreement") is entered into by and among Richard C. Blum & Associates, L.P., a California limited partnership ("RCBA"), PB Capital Partners, L.P., a Delaware limited partnership ("Purchaser"), and Perini Corporation, a Massachusetts corporation ("Seller") effective as of November 8, 1996 (RCBA, Purchaser and Seller shall collectively be referred to as the "Parties"). Unless otherwise provided herein, all capitalized terms shall have the meaning given to them in the Stock Purchase and Sale Agreement dated July 24, 1996, as amended to and including the date of this Agreement ("Stock Agreement"), by and among the Parties. This Agreement is intended to provide the Parties with certain interim representations and warranties relating to the current status of the conditions which must be satisfied prior to the Closing of the Stock Agreement. The Parties hereby agree that these interim representations and warranties do not relieve any Party of the obligation to make such further representations and warranties as are required under the terms of the Stock Agreement. The Seller represents and warrants that, as of the date of this Agreement, all of the representations and warranties contained in Sections 5.1 through 5.25 of the Stock Agreement, inclusive, are true and accurate in all material respects, that there is no material violation of any 78 covenant applicable to Seller pursuant to the Stock Agreement, and that there has been no material failure to satisfy any condition required to be satisfied prior to the date hereof. Each of RCBA and Purchaser hereby represents and warrants that it does not, as of the date hereof, have any actual knowledge of facts (i) that constitute a violation by Seller of the covenants contained in Sections 7.7, 7.8, 7.9, 7.10, 7.14, 7.15 and 7.19 of the Stock Agreement, or (ii) that constitute a breach by Seller of any representation and warranty contained in Article 5 of the Stock Agreement (other than in Section 5.22). RCBA and Purchaser further represent that RCBA has no right to terminate the Stock Agreement pursuant to Section 7.4 thereof. Furthermore, each of RCBA and Purchaser represents and warrants that, as to Section 5.22 of the Stock Agreement, it does not deem any changes affecting Seller (i) of which RCBA has been advised by Seller or (ii) of which RCBA otherwise has actual knowledge, in either case as of the date of this Agreement (collectively, "Known Changes"), to constitute a Material Adverse Change within the meaning of the Stock Agreement. Notwithstanding the preceding sentence, (x) the Known Changes affecting Seller may, together with any changes affecting Seller other than Known Changes, constitute a Material Adverse Change within the meaning of the Stock Agreement, and (y) the further deterioration in Seller's business after the date hereof due to Known Changes affecting Seller may also constitute a Material Adverse Change. This Agreement may be executed through the use of separate signature pages or in any number of counterparts, and each of such counterparts shall, for all purposes, constitute one agreement binding on all the Parties hereto, notwithstanding that all the parties are not signatories to the same counterpart. Each of the Seller, RCBA and the Purchaser acknowledges that the banks listed on Exhibit 3.9 to the Stock Purchase Agreement have relied on this letter agreement in entering into Amendment No. 7 to the Bridge Credit Agreement with the Seller and the Participation Agreement with the Purchaser. 2 79 IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement effective as of the DATE FIRST written above. Perini CORPORATION BY: --------------------------------- RICHARD C. BLUM & ASSOCIATES, L.P. BY: --------------------------------- PB CAPITAL PARTNERS, L.P. BY: --------------------------------- 3 80 MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered into as of November __, 1996 by and among Perini Corporation, a Massachusetts corporation ("Perini"), Tutor-Saliba Corporation, a California corporation ("Tutor-Saliba") and Ronald N. Tutor ("Tutor"), an individual and President of Tutor-Saliba. WHEREAS, Perini has had some difficulty meeting its cash requirements for the past year due to, inter alia, its high level of capital-intensive civil construction work and the cash support required by its real estate assets; WHEREAS, Perini's financial condition has impeded its ability to perform on existing projects and to bid on new projects; WHEREAS, during the course of 1996, Perini engaged in an extensive search for new capital to support its cash needs and to provide it the opportunity to improve operations and improve its competitiveness in the general contracting and construction industry; WHEREAS, as a result of its search for capital, Perini entered into a Stock Purchase and Sale Agreement dated July 24, 1996 by and among Perini, PB Capital Partners, L.P., a Delaware limited partnership ("PB Capital Partners"), and Richard C. Blum & Associates, L.P., a California limited partnership ("RCBA") (as amended through the date hereof, the "Stock Purchase Agreement"), pursuant to which it is contemplated that Perini will issue convertible preferred stock to PB Capital Partners in exchange for an investment by PB Capital Partners of $30,030,000 (the "Investment"); WHEREAS, Tutor-Saliba is a limited partner of PB Capital Partners; WHEREAS, Tutor-Saliba directly owns approximately 7.24% of the outstanding common stock, par value $1.00 per share (the "Common Stock") of Perini; WHEREAS, Tutor-Saliba has from time to time engaged in construction joint ventures with Perini under the name Tutor-Saliba/Perini; WHEREAS, considering the existing and potential relationships, direct and indirect, between Tutor-Saliba and Perini, as well as Tutor's expertise and achievements in the construction industry, the parties hereto desire, in connection with and contingent upon the Investment, that Tutor-Saliba provide the services of Tutor to Perini, for the purpose of providing direction to Perini with respect to its ongoing and future construction operations and improving Perini's operating efficiency and thus its ability to successfully compete for new projects and in new areas; NOW THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties hereby agree as follows: 81 1. Effectiveness. Unless sooner terminated pursuant to Section 6 hereof, this Agreement shall become effective on the date of the closing of the Investment (the "Effective Date"). 2. Management. (a) Tutor-Saliba and Tutor each hereby agree to provide to Perini the management services of Tutor, to assist Perini from time to time (but for no more than ten (10) days in any calendar month, unless the parties otherwise agree in writing) as described in Section 2(b) hereof or as the parties hereto may otherwise agree. (b) Tutor shall initially serve as acting Chief Operating Officer of Perini, and will provide direction with respect to Perini's ongoing and future construction operations, with the goal of achieving greater operating efficiencies, reducing Perini's need for working capital, reducing Perini's exposure to risk by negotiating and bidding on construction projects that will yield higher profit margins than current projects, negotiating with Perini's lenders, bonding companies and insurers, and generally improving Perini's cash flow situation and competitive position in the general contracting and construction industry. (c) Perini hereby agrees to take all action which may be required to: (i) appoint Tutor acting Chief Operating Officer of Perini; (ii) provide Tutor with the use of an office at Perini's principal executive offices and administrative and other support services as may be reasonably necessary in connection with the performance of Tutor's services under Section 2(b) hereof; (iii) make available to Tutor the services of such of its employees and consultants as may be reasonably necessary to the performance of the services described in Section 2(b) above; and (iv) issue the Option (as defined below) and otherwise pay the management fee pursuant to Section 3 hereof. 3. Compensation. In return for the provision of Tutor's services, Perini shall pay a management fee as follows: (a) On the Effective Date, Perini shall issue to Tutor, pursuant to Perini's 1982 Stock Option and Long-Term Performance Incentive Compensation Plan, as amended (the "Plan") (or, in the event options are unavailable for issuance under such plan, with similar terms and conditions as under the Plan), an option (the "Option") exercisable for 150,000 shares of Common Stock, with an exercise price per share equal to the closing price of the Common Stock on the American Stock Exchange on the day prior to the Effective Date. The Option will first become exercisable forty months after the Effective Date. (b) Beginning on the Effective Date, Perini shall pay a fee to Tutor-Saliba at the rate of $150,000 per year, such amount to be paid in twelve equal monthly installments in arrears on the 15th of each month, or as the parties hereto shall otherwise agree in writing. 2 82 4. Limitation of Liability. (a) Neither Tutor nor Tutor-Saliba makes any express or implied representation, warranty or guaranty to Perini relating to the services to be performed by Tutor pursuant to this Agreement or the quality or results of such services. (b) Neither Tutor nor Tutor-Saliba shall be liable to Perini or to any of its subsidiaries or affiliates or to any third party for failure to perform the services to be performed by either of them pursuant to this Agreement for any expense, claim, loss or damage, including, without limitation, indirect, special, consequential or exemplary damages, suffered other than by reason of such party's intentional failure to perform the services to be performed by such party pursuant to this Agreement, or by reason of action taken or omitted to be taken by such party which was in bad faith and in a manner not reasonably believed by such party to be in the best interests of Perini. 5. Indemnification. Perini shall indemnify and hold Tutor and Tutor-Saliba harmless against all loss, cost, liability and expense arising out of the performance of this Agreement by Tutor and Tutor-Saliba, upon the same terms and conditions as those provided to officers and directors of Perini by Section 9 of the By-laws of Perini. A true, complete and correct copy of Section 9 of the By-laws of Perini is attached hereto as Exhibit A. 6. Termination. Unless earlier terminated by the parties, this Agreement shall terminate upon the earliest to occur of (i) December 31, 1998, (ii) Tutor's inability to perform the services contemplated hereby, whether because of death, disability or otherwise, (iii) written notice from Perini to Tutor after, in the determination of a majority of the Executive Committee of the Board of Directors of Perini, Tutor has failed to perform his obligations under this Agreement, and (iv) the reasonable determination by the Board of Directors or Executive Committee of Perini, and written notice thereof to Tutor, that it would be inadvisable for Tutor to continue performing the services contemplated by this Agreement. 7. Governing Law. This Agreement shall be construed under and governed by the internal laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. 8. Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if delivered or sent by facsimile transmission, upon receipt, or if sent by registered or certified mail, upon the sooner of the date on which receipt is acknowledged or the expiration of three days after deposit in United States post office facilities properly addressed with postage prepaid. All notices to a party will be sent to the addresses set forth below or to such other address or person as such party may designate by notice to each other party hereunder: 3 83 TO TUTOR-SALIBA OR TUTOR: Tutor-Saliba Corporation c/o Ronald N. Tutor 15901 Olden Street Sylmar, CA 91342 With a copy to: [COUNSEL] TO PERINI: Perini Corporation 73 Mt. Wayte Avenue Framingham, MA 01701-9160 Attn: Mr. David B. Perini With a copy to: Goodwin, Procter & Hoar LLP Exchange Place Boston, MA 02109 Fax (617) 523-1231 Attn: Richard A. Soden, Esq. Any notice given hereunder may be given on behalf of any party by such party's counsel or other authorized representative. 9. Entire Agreement. This Agreement, including the exhibit referred to herein, is complete, reflects the entire agreement of the parties with respect to its subject matter, and supersedes all previous written or oral negotiations, commitments and writings. No promises, representations, understandings, warranties and agreements have been made by any of the parties hereto except as referred to herein; and all inducements to the making of this Agreement relied upon by either party hereto have been expressed herein. 10. Assignability; Binding Effect. This Agreement shall not be assignable by any of the parties hereto without the written consent of the other parties. This Agreement shall be binding upon and enforceable by, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns. 11. Execution in Counterparts. For the convenience of the parties and to facilitate execution, this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document. 12. Amendments. This Agreement may not be amended or modified, nor may compliance with any covenant set forth herein be waived, except by a writing duly and validly executed by each party hereto, or in the case of a waiver, the party waiving compliance. 13. Confidentiality. Tutor-Saliba and Tutor each hereby agree (i) to keep confidential and not use in any manner adverse to Perini or any of its subsidiaries or affiliates any confidential information about Perini, any of its subsidiaries or any of its affiliates, 4 84 including without limitation financial information, trade secrets, bidding processes and other information with respect to actual or prospective bids made or being considered to be made by any of them and (ii) to indemnify and hold harmless Perini, its subsidiaries and its affiliates for any and all loss, cost, liability and expense arising out of a breach of this provision. 5 85 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first set forth above by their duly authorized representatives. PERINI CORPORATION By: --------------------------------------- Title: TUTOR-SALIBA CORPORATION By: --------------------------------------- Title: RONALD N. TUTOR ------------------------------------------ 6 86 EXHIBIT A SECTION 9. Indemnification of Directors and Officers 9.1 General. subject to the provision of this Section and any limittions imposed by law, the corporation shall indemnify its directors and officers against all expenses incurred by them in connection with any proceeding in which they are involved by reason of their serving in such capacities except that (i) no indemnification shall be provided for any director or officer with respect to any matter as to which he shall have been adjudicated not to have acted in good faith and in the reasonable belief that his action was in the best interests of the corporation, or with respect to a criminal matter, that he had reasonable cause to believe that his conduct was unlawful, and (ii) no indemnification shall be provided for any director or officer with respect to a proceeding by or in the right of the corporation in which he is adjudicated to be liable to the corporation. Such indemnification may be provided to an officer or director in connection with a proceeding in which it is alleged that he received an improper personal benefit by reason of his position, regardless of whether the claim involves his services in such capacity, subject to the foregoing limitation, unless it shall have been determined that an improper personal benefit was received by the director or officer. Except as provided in Section 9.2. indemnification under this Section 9 shall be authorized in each case as determined by the board of directors, which may act notwithstanding that one or more of these members are parties to the proceeding in question or otherwise have an interest in such indemnification. 9.2 Mandatory Indemnification. Notwithstanding any contrary provisions of this Section, if a director or officer of the corporation has been wholly successful on the merits in defense of any proceeding in which he was involved by reason of his position or an a result of his servinq in such capacity (including the termination of investigative or other proceedings without a finding of fault on the part of the director of officer), he shall be indemnified by the corporation against all expenses incurred by him in connection therewith. 9.3 Definitions. For purposes of this Section 9: (a) A"director" or "officer" means any person serving in an office filled by appointment or election by the directors or the stockholders and also includes (i) a director 87 or officer of the corporation serving at the request of the corporation as a director, officer, employee, trustee, partner or other agent of another organization, (ii) any person who formerly served as a director or officer, and (iii) the heirs or personal representatives of such persons; (b) "Expenses" means all expenses (including attorneys fees and disbursements) actually and reasonably incurred in defense of a proceeding or in successfully seeking indemnification under Section 9.2 hereof, and any judgments, awards, fines, penalties and reasonable amounts paid in settlement of a proceeding; and (c) A"proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and any claim which could be the subject of a proceeding. 9.4 Advances. Except as limited by law, expenses incurred by a director or officer in defending any proceeding in which he is involved by reason of serving in such capacities may be paid by the corporation in advance of final disposition of the proceeding upon receipt of his written undertaking to repay such amount if it is ultimately determined that he is not eligible to be indemnified, which undertaking shall be an unlimited general obligation but need not be secured and may be accepted without regard to the financial ability of such persons to make repayment; provided, that no such advance payment shall be made if it is determined by the board of directors on the basis of the circumstances known at the time (without further investigation) that said director or officer will ultimately be ineligible to be indemnified under this section 9. 9.5 Settlement Proceedings. If a proceeding is compromised or settled in a manner which imposes a liability or obligation upon a director or officer, (i) no indemnification shall be provided to him with respect to a proceeding by or in the right of the corporation unless the board of directors determines in its discretion that indemnification is appropriate under the circumstances, and (ii) no indemnification shall be provided to him with respect to any other type of proceeding if it is determined by the board of directors that said director or officer is ineligible to be indemnified under this Section 9. The determination by the board of directors in each case shall be made on the basis of the circumstances know to it at that time without further investigation. 9.6 Insurance. The corporation shall have power to purchase and maintain insurance on behalf of any director, 88 officer, employee or agent of the corporation against any liability or cost incurred by him in any such capacity or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability or cost. 9.7 Employee Benefit Plans. If the corporation or any of its directors or officers sponsors, undertakes or incurs any responsibility as a fiduciary with respect to an employee benefit plan, then, for purposes of indemnification of such person under this Section (i) a "director" or "officer" shall be deemed to include any director or officer of the corporation who serves at its request in any capacity with respect to said plan, (ii) such director or officer shall be deemed not to have failed to have acted in good faith and in the reasonable belief that his action has in the best interests of the corporation if he acted in good faith and in the reasonable belief that his action was in the beat interest of the participants or beneficiaries of said plan, and (iii) "expenses" shall be deemed to include any taxes or penalties assessed on such director or officer with respect to said plan under applicable law. 9.8 Other Provisions. The provisions of this section 9 shall not be construed to limit the power of the corporation to indemnify its officers or directors to the full extent permitted by law and enter specific agreements or arrangements for this purpose. In addition, the corporation shall have power to indemnify any of its agents or employees who are not directors or officers on any terms consistent with law which it deems to be appropriate. 9.9 Amendment. The provisions of this Section 9 may be amended or repealed by the stockholders; however, no such amendment or repeal which adversely affects the rights of a director of officer under this Section 9 with respect to his acts or omissions at any time prior to such amendment or repeal, shall apply to him without consent. 89 AMENDMENT TO BY-LAWS OF PERINI CORPORATION 1. Section 3.3 of the By-Laws shall be amended and restated in its entirety as follows: "3.3 Executive Committee and Other Committees. The directors, by a vote of a majority of the directors then in office, shall elect from their number an Executive Committee composed of five members and may elect such other committees the directors shall determine, and delegate to them authority to act as and for the Board to the extent permitted by law and as provided herein. "(A) Neither the board of directors nor the Corporation shall take any of the following actions without the prior approval of a majority of the members of the Executive Committee: (a) any borrowing or guarantee by the corporation exceeding $15 million, (b) except for issuances of stock or stock options pursuant to the corporation's incentive compensation plans or programs, any issuance of stock (whether common or preferred, whether voting or non-voting, whether junior or senior to the Series B Cumulative Convertible Preferred Stock) other than Common Stock of the corporation in an amount not exceeding five percent (5%) of the issued and outstanding Common Stock on September __, 1996, (c) any strategic alliance (other than a construction joint venture) involving a capital commitment exceeding $5 million, (d) any asset sale or lease exceeding $5 million (other than equipment dispositions in the normal course of business); (e) any redemption or amendment of the Preferred Share Purchase Rights, of the kind authorized and declared on September 23, 1988 and distributed by the Corporation in September 1988 as the same have been amended prior to September __, 1996 ('Rights'), or the preferred stock of the Corporation issuable upon the exercise of such Rights, or any amendment of the Rights Agreement by and between the Corporation and the First National Bank at Boston, dated as of September 23, 1988, as amended; and (f) any termination of (other than a termination upon expiration) or amendment to the management agreement between the Corporation and Tutor-Saliba Corporation; provided, however, that for purposes of this Section 3.3(A) of the By-Laws, approval of the Executive Committee shall not be required for any decision by the Board of Directors to redeem the Series B Cumulative Convertible Preferred Stock pursuant to Section 6(a) of the terms thereof. Notwithstanding the foregoing sentence, the board of directors of the Corporation may take any of the actions specified in the preceding sentence if, after having consulted with and considered the advice of outside counsel, it has reasonably determined in good faith that the failure of the board to take such action would be likely to cause the members of such board to breach their fiduciary duties under applicable law. "(B) The Executive Committee shall make the rules for the conduct of its business; provided, however, that it shall have no permanent 90 chairman, shall report its actions to the board of directors, and shall keep minutes of its meetings. Other Committees created and elected by the directors may exercise such powers other than those powers delegated to the Executive Committee, as the directors determine. Except as the directors may otherwise determine, any such other committee may make the rules for the conduct of its business, but unless otherwise provided by the directors or waived, its business shall be conducted, or its actions taken as nearly as may be the same manner as is provided for by these by-laws with respect to meetings or for the conduct of business or the taking of action by the directors. "(C) All members of such committees shall hold such offices, and all such committees shall exist, solely at the pleasure of the board of directors; provided, however, that the Executive Committee may not be disbanded, reorganized, or reconstituted without the prior written approval of a majority of the members of the Executive Committee as constituted prior to such change (if the holders of the Series B Cumulative Convertible Preferred Stock then have the right to designate more than one member of the Executive Committee pursuant to the Certificate of Vote establishing such series, including the members so designated by the holders of the Series B Cumulative Convertible Preferred Stock); provided further, however, that the board shall not take any action that would result in there being fewer members of the Executive Committee designated by the holders of the Series B Cumulative Convertible Preferred Stock than such holders are entitled to designate pursuant to the Certificate of Vote establishing such series. The board shall have the power to rescind any action of any committee (other than decisions or actions of the Executive Committee pursuant to Section 3.3(A) or 4.5 hereof); provided, however, that no such rescission shall have any retroactive effect." 2. Section 4.5 of the By-Laws shall be amended by replacing the phrase "subject to the direction of the directors" each time it appears therein with "subject to the direction of the Executive Committee for so long as it exists and thereafter subject to the direction of the directors." - 2 - -----END PRIVACY-ENHANCED MESSAGE-----