EXHIBIT 4.10
STOCK ASSIGNMENT AND ASSUMPTION AGREEMENT
This Stock Assignment and Assumption Agreement ("Assignment Agreement")
is entered into this 17th day of January 1997, by and among PB Capital Partners,
L.P., a Delaware limited partnership ("Assignor"), The Common Fund for
Non-Profit Organizations ("Assignee"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.
("RCBA"), and Perini Corporation ("Seller").
WHEREAS, Assignor is a party to a Stock Purchase and Sale Agreement by
and among Assignor, Seller, and RCBA, dated July 24, 1996, together with all
exhibits and schedules thereto and all amendments and modifications thereof
(collectively referred to as the "Stock Purchase Agreement"), pursuant to which
Assignor agreed to purchase 150,150 shares of newly issued Series B Cumulative
Convertible Preferred Stock, par value $1.00 per share (the "Series B Preferred
Stock"), of Seller for $30,030,000;
WHEREAS, Assignor wishes to assign to Assignee, and Assignee wishes to
accept assignment from Assignor, (i) all of Assignor's rights and obligations
under the Stock Purchase Agreement to purchase from Seller 23,300 shares of
Series B Preferred Stock of Seller (the "Assigned Shares"), and (ii) all other
rights, remedies, and obligations of Assignor under the Stock Purchase Agreement
with respect to the Assigned Shares;
WHEREAS, pursuant to an Investment Management Agreement between RCBA
and Assignee, dated July 1, 1993, RCBA is the investment manager and
attorney-in-fact for the Assignee with respect to certain investments;
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, each of the parties agrees as follows:
1. Assignment and Assumption.
(a) Upon the terms and subject to the conditions appearing herein, the
Assignor hereby transfers, assigns and delegates to the Assignee all of
Assignor's rights, title, interest, remedies, duties and obligations relating to
the purchase of the Assigned Shares under the Stock Purchase Agreement
(collectively, the "Assigned Rights").
(b) Upon the terms and subject to the conditions appearing herein, on
the basis of the representations, warranties and covenants of Seller in the
Stock Purchase Agreement, Assignee hereby accepts the foregoing assignment and
delegation and, in addition, expressly assumes and agrees to keep, perform and
fulfill all of the terms, covenants, conditions, duties and obligations insofar
as they relate to the Assignee's purchase of the Assigned Shares of the Series B
Preferred Stock which are required to be kept, performed and fulfilled by the
Assignor pursuant to the Stock Purchase Agreement from and after the date of
this Assignment. Assignor represents and
warrants that it has delivered to Assignee a true and complete copy of the Stock
Purchase Agreement.
(c) Assignor, Assignee and Seller hereby agree as follows:
(1) All obligations of Assignor and Assignee under the Stock
Purchase Agreement shall be several, and Assignee and Assignor shall not be
jointly obligated in any respect.
(2) All covenants, duties, obligations and liabilities of
Assignee arising under the Stock Purchase Agreement as a result of this
Agreement shall be limited to the covenants, duties, obligations and liabilities
that relate to the Assigned Shares. Without limiting the generality of the
immediately preceding sentence, neither Assignee nor Assignor shall have any
responsibility for any breach or default, or failure in performance, of the
other under the Stock Purchase Agreement.
(3) Except as hereinafter provided, wherever in the Stock
Purchase Agreement there is any reference to "Purchaser", as defined in the
Stock Purchase Agreement, that reference shall mean and refer to each of
"Purchaser" and "The Common Fund for NonProfit Organizations." Without limiting
the generality of the foregoing, (i) all obligations of Seller to Purchaser,
including, without limitation, those arising under the representations,
warranties and covenants of Seller in, or as provided for under, the Stock
Purchase Agreement, shall be to each of Assignor and Assignee, (ii) all
approvals, agreements, consents and waivers of Purchaser under the Stock
Purchase Agreement must be given by each of Assignor and Assignee, (iii) all
disclosures that Seller is required to make to Purchaser under the Stock
Purchase Agreement or applicable law and all information that Seller must
provide to Purchaser must be made and provided to Assignor and Assignee, and
(iv) the Stock Purchase Agreement may not be amended or modified without the
written consent of each of Assignor and Assignee.
(4) Assignee shall not make any representations or warranties
of Assignor under Article VI of the Stock Purchase Agreement. RCBA represents
and warrants to Seller that it has all requisite power and authority to execute,
deliver, and perform this Agreement on behalf of Assignee.
(5) Seller shall take reasonable measures to establish
procedures to deal with, and minimize the effects of, conflicts of interest of
directors and officers of Seller and shall from time to time provide Assignee
with such information with respect to such procedures and their application to
specific circumstances as Assignee may reasonably request.
(6) All notices to Assignee under the Stock Purchase Agreement
shall be given in the manner provided in Section 14.1 thereof and to Assignee as
follows:
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If to Assignee:
The Common Fund for Non-Profit Organizations
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(7) Assignee's obligation to purchase the Assigned Shares
shall be conditioned upon Assignor's representations and warranties in Section
3(d) hereof being true and correct as of the Closing Date.
(8) The Stock Purchase Agreement is hereby amended to
incorporate the foregoing provisions of this Section 1(c) to the extent
necessary to give effect to such provisions and to avoid any inconsistency
between such provisions and the Stock Purchase Agreement.
2. Modification. This Assignment Agreement shall not be modified,
discharged or terminated except by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
3. Notices. Any notice, demand or other communication that any party
hereto may give to anyone interested hereunder shall be sufficiently given if
given in the manner provided in Section 14.1 of the Stock Purchase Agreement; to
Assignor as specified in such Section 14.1; and to Assignee as specified in
Section 1(c)(12) of this Agreement.
4. Binding Effect. Upon execution by both of the parties hereto, this
Assignment Agreement shall be binding upon and inure to the benefit of the
parties and their heirs, executors, administrators, successors and legal
representatives, except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect relating to creditors' rights and general principles of equity and
except to the extent that rights to indemnity and contribution may be limited by
federal or state securities laws or policies underlying such laws.
5. Entire Agreement. This Assignment Agreement, together with the Stock
Purchase Agreement, the Registration Rights Agreement, the Certificate of Vote
of Directors with respect to the Series B Preferred Stock and the Shareholders'
Agreement constitute the entire agreement of the parties, and there are no
representations, covenants or other agreements except as stated or referred to
herein.
6. Assignability. This Assignment Agreement is not transferable or
assignable by any party hereto.
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7. Applicable Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of the conflicts of laws thereof.
8. Counterparts. This Assignment 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, notwithstanding that all parties are not signatories to the
same counterpart.
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IN WITNESS WHEREOF, the parties hereto have entered into this
Assignment Agreement as of the date first written above.
THE COMMON FUND FOR
NON-PROFIT ORGANIZATIONS
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.,
its attorney-in-fact
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates,
Inc., its General Partner
By: __________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief
Financial Officer and
Managing Director
PB CAPITAL PARTNERS, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.,
its General Partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates,
Inc., its General Partner
By: __________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief
Financial Officer and
Managing Director
PERINI CORPORATION
By: _____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & ASSOCIATES,
L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & Associates, L.P.,
its General Partner
By: ______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Chief Financial
Officer and Managing Director
358616.c1
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