UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT PURSUANT

TO SECTION 13 OR 15(D) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): September 5, 2008

 

 

PERINI CORPORATION

(Exact Name of Registrant as Specified in Its Charter)

 

 

Massachusetts

(State or Other Jurisdiction of Incorporation)

 

1-6314   04-1717070
(Commission File Number)   (IRS Employer Identification No.)

 

73 Mt. Wayte Avenue, Framingham, MA   01701
(Address of Principal Executive Offices)   (Zip Code)

(508) 628-2000

(Registrant’s Telephone Number, Including Area Code)

 

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement

On September 8, 2008, in connection with the closing of the merger as described in Item 2.01 below, that certain Shareholders Agreement, dated as of April 2, 2008 (the “Shareholders Agreement”), by and among the Perini Corporation, a Massachusetts corporation (the “Company”), Ronald N. Tutor and the former shareholders of Tutor-Saliba Corporation, a California corporation (“Tutor-Saliba”) who became shareholders of the Company upon the closing of the merger, and that certain Employment Agreement, dated as of April 2, 2008 (the “Employment Agreement”), by and between the Company and Ronald N. Tutor, became effective. A copy of the Shareholders Agreement and the Employment Agreement were filed previously as Exhibits 4.1 and 10.1, respectively, to the Current Report on Form 8-K filed by the Company on April 7, 2008.

 

Item 2.01 Completion of Acquisition or Disposition of Assets

On April 2, 2008, the Company entered into an Agreement and Plan of Merger, as amended on May 28, 2008 (the “Merger Agreement”), by and among the Company, Trifecta Acquisition LLC, a California limited liability company and wholly owned subsidiary of the Company (“Merger Sub”), Tutor-Saliba, Ronald N. Tutor and the shareholders of Tutor-Saliba. For additional information on the Merger Agreement and the transactions contemplated thereby, please see the Current Report on Form 8-K filed by the Company on April 7, 2008. A copy of the Merger Agreement as initially executed was filed previously as Exhibit 2.1 to the Current Report filed by the Company on April 7, 2008, and a copy of Amendment No. 1 to the Merger Agreement, dated as of May 28, 2008, by and among the parties to the Merger Agreement, was filed previously as Exhibit 2.2 to the Quarterly Report on Form 10-Q for the quarter ended June 30, 2008 filed by the Company on August 8, 2008.

On September 8, 2008, pursuant to the Merger Agreement, Tutor-Saliba was merged with and into Merger Sub, with Merger Sub surviving the merger and continuing as a wholly owned subsidiary of the Company (the “Merger”). Pursuant to the Merger Agreement, Perini issued 22,987,293 shares of common stock of the Company to the holders of shares of common stock of Tutor-Saliba immediately prior to the effective time of the Merger.

Additional information about the Merger, including a description of Tutor-Saliba, the former shareholders of Tutor-Saliba from whom Tutor-Saliba was acquired by the Company in the Merger and relationships between such shareholders and the Company and any of its officers, directors and/or affiliates, and other information, was filed previously in the Definitive Proxy Statement on Scheduled 14A filed by the Company on August 6, 2008, which was mailed to shareholders of the Company as of July 30, 2008, the record date for the 2008 annual meeting of shareholders.

The Company intends to provide any required additional financial statements relating to the Merger under cover of a Current Report on Form 8–K/A within the time allowed for such filing by Item 9.01(a)(4) of this Current Report on Form 8–K.


Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant

In connection with the completion of the Merger, Tutor-Saliba declared and distributed certain notes as dividends to the Tutor-Saliba shareholders on September 5, 2008 prior to the closing of the Merger. The principal amount of the notes issued was $58,484,536, of which notes with a principal amount of $55,917,964 in the aggregate were issued to two trusts controlled by Ronald N. Tutor. The notes are obligations of Tutor-Saliba, which became a subsidiary of the Company upon the closing of the Merger. The notes are not guaranteed by the Company.

A copy of the form of the notes is filed as Exhibit 10.1 hereto, which is incorporated by reference herein. The notes provide that the unpaid principal balance of the notes and all accrued and unpaid interest thereupon will become due and payable in full on June 30, 2012. Tutor-Saliba may prepay any amounts outstanding under the notes in whole or in part without penalty or premium at any time. In addition, Tutor-Saliba will be required to prepay the notes with 100% of excess cash flow of Tutor-Saliba (as described in the note) for the preceding fiscal year (or, for the year in which the closing of the Merger occurs, the partial fiscal year from the closing through the end of such fiscal year) within 90 days of the end of each fiscal year until the principal and interest of the notes has been repaid.

 

Item 3.02 Unregistered Sales of Equity Securities

On September 8, 2008, in connection with the closing of the Merger described in Item 2.01 above, and as consideration for the Merger, the Company issued 22,987,293 shares of its common stock to the shareholders of Tutor-Saliba immediately prior to the effective time of the Merger. In issuing these shares, the Company relied on an exemption from registration under Section 4(2) of the Securities Act of 1933, as amended, and Rule 506 promulgated thereunder.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

(d) In connection with the closing of the Merger described in Item 2.01 above and as contemplated by the Shareholders Agreement referred to in Item 1.01 above, on September 5, 2008, the Board of Directors of the Company appointed C.L. Max Nikias as a director of the Company, effective upon the closing of the Merger. This appointment became effective on September 8, 2008. Mr. Nikias also was appointed to the Corporate Governance and Nominating Committee of the Board of Directors of the Company, effective upon his appointment to the board. Mr. Nikias was selected for such appointments pursuant to the Shareholders Agreement. Mr. Nikias is not a party to any transaction, or series of transactions, required to be disclosed pursuant to Item 404(a) of Regulation S-K.

In addition, by vote of the shareholders of the Company at the annual meeting of shareholders of the Company that took place on September 5, 2008, the shareholders of the Company elected all of the nominees for Class III directors nominated by the Board of Directors of the Company, including Marilyn A. Alexander and Donald D. Snyder, who had not previously served as directors of the Company.


(e) As discussed in Item 1.01 above, on September 8, 2008, the Employment Agreement with Mr. Tutor became effective. A copy of the Employment Agreement was filed previously as Exhibit 10.1 to the Current Report on Form 8-K filed by the Company on April 7, 2008.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

On September 5, 2008, pursuant to an affirmative vote of holders of a majority of the outstanding shares of the common stock of the Company and in connection with the closing of the Merger, the Company filed with the Secretary of the Commonwealth of Massachusetts an Articles of Amendment to increase the number of authorized shares of the Company’s common stock from 40 million to 75 million shares. A copy of the Articles of Amendment as filed is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

 

Item 8.01 Other Events

On September 5, 2008 and September 8, 2008, the Company issued press releases announcing the approval by the shareholders of the Company of certain proposals related to the Merger and the closing of the Merger as described in this Current Report on Form 8-K, respectively. Copies of the press releases are attached hereto as Exhibits 99.1 and 99.2 hereto, respectively, and are incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits

 

  (a) Financial Statements of Businesses Acquired

The Company intends to provide any required additional financial statements relating to the Merger under cover of a Current Report on Form 8–K/A within the time allowed for such filing by Item 9.01(a)(4) of this Current Report on Form 8–K.

 

  (b) Pro Forma Financial Information

The Company intends to provide any required additional pro forma financial information relating to the Merger under cover of a Current Report on Form 8–K/A within the time allowed for such filings by Item 9.01(b)(2) of this Current Report on Form 8–K.


  (d) Exhibits

 

Exhibit No.

 

Description

3.1   Perini Corporation Articles of Amendment
10.1   Form of Dividend Note Issued to Certain Former Tutor-Saliba Corporation Shareholders
99.1   Press Release of Perini Corporation, dated September 5, 2008.
99.2   Press Release of Perini Corporation, dated September 8, 2008.


SIGNATURES

According to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized on September 11, 2008.

 

PERINI CORPORATION
 

/s/    Kenneth R. Burk

By:   Kenneth R. Burk
Its:   Senior Vice President and
  Chief Financial Officer

Exhibit 3.1

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Articles of Amendment

(General Laws, Chapter 156D, Section 10.06; 950 CMR 113.34)

We, Robert Band, President and Chief Operating Officer and Susan Mellace, Clerk of Perini Corporation (the “ Company ”), located at the registered office address at 73 Mt. Wayte Avenue, Framingham, Massachusetts 01701, certify that these Articles of Amendment effecting article numbered 3 of the Restated Articles of Organization of the Company, as amended and corrected (the “ Articles of Organization ”), were adopted by the board of directors on April 2, 2008 and were duly adopted at a meeting held on September 5, 2008, by vote of the board of directors and by vote of 19,243,995 shares of common stock out of 27,328,927 shares outstanding, being at least a majority of each type, class or series outstanding and entitled to vote thereon and that such approval by the shareholders of the Company constitutes approval of these Articles of Amendment in the manner required by Chapter 156D and by the Articles of Organization of the Company.

To change the number of shares and par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:

Without Par Value

 

Type

   Number of Shares    Par Value

Common:

   None   

Preferred:

   None   
With Par Value

Type

   Number of Shares    Par Value

Common:

   40,000,000    $ 1.00

Preferred:

   1,000,000    $ 1.00

Change the total authorized to:

     
Without Par Value

Type

   Number of Shares    Par Value

Common:

   None   

Preferred:

   None   


With Par Value

 

Type

   Number of Shares    Par Value

Common:

   75,000,000    $ 1.00

Preferred:

   1,000,000    $ 1.00

The amendment shall be effective at the time and on the date approved by the Division, unless a later effective date not more than 90 days from the date and time of filing is specified:                             

 

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Signed under the penalties of perjury, this 5th day of September, 2008.

 

By:  

/s/ Robert Band

Name:   Robert Band
Title:   President and Chief Operating Officer
By:  

/s/ Susan Mellace

Name:   Susan Mellace
Title:   Clerk


THE COMMONWEALTH OF MASSACHUSETTS

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Articles of Amendment

(General Laws, Chapter 156D, Section 10.06; 950 CMR 113.34)

I hereby certify that upon examination of theses articles of amendment, it appears that the provisions of the General Laws relative thereto have been complied with, and the filing fee in the amount of $              having been paid, said articles are deemed to have been filed with me this          day of                      , 2008, at          a.m./p.m.

Effective date:                                         

William Francis Galvin

Secretary of the Commonwealth

 

Filed By:    Kirkland & Ellis LLP
  

655 Fifteenth Street, N.W.

Washington, DC 20005

   202-879-5934
   jcosgrove@kirkland.com

Exhibit 10.1

PROMISSORY NOTE

 

$[ ]    September 5, 2008            

FOR VALUE RECEIVED, Tutor-Saliba Corporation, a California corporation (“ TSC ”), or Tutor-Saliba Builders, a California corporation, as assignee of TSC (the “ Company ”), hereby promises to pay to [Shareholder] (“ Holder ”) or its registered assigns the principal sum of                                          dollars ($[ ]), together with interest thereon calculated from the date hereof in accordance with the provisions of this note (this “ Note ”).

This Note is issued in the manner contemplated by Section 6.20 of that certain Agreement and Plan of Merger, dated as of April 2, 2008, as amended by Amendment No. 1 to The Agreement and Plan of Merger dated as of May 28, 2008 (the “ Merger Agreement ”), by and among Perini Corporation, a Massachusetts corporation (“ Perini ”), Trifecta Acquisition LLC, a California corporation and a wholly-owned subsidiary of Perini (“ Merger Sub ”), the Company, Ronald N. Tutor, a resident of California, and shareholders of the Company signatory thereto, pursuant to which, among other things, the Company shall merge with and into Merger Sub, with Merger Sub to continue as the surviving entity in the merger and as a wholly-owned subsidiary of Perini on the terms and subject to the conditions set forth in the Merger Agreement.

This Note evidences the absolute and unconditional obligation of the Company. The Company is issuing notes, together with this Note, equal to an aggregate principal amount of                                          dollars ($[ ]) (the “ Aggregate Principal Amount ”) in connection with the issuance of this Note (all such notes, including the Note, the “ Total Dividend Notes ”).

1. Scheduled Payments : Subject to the terms of Section 4:

(a) Principal . The entire unpaid principal balance of this Note (together with all accrued and unpaid interest thereupon) shall become due and payable in full on June 30, 2012 (the “ Maturity Date ”).

(b) Interest . Interest shall accrue on the unpaid principal amount of this Note at a rate per annum equal to 5% per annum. Interest shall be calculated on the basis of the actual number of days elapsed and a year of 365 days, and be payable in cash on the last day of each March, June, September and December of each applicable year (each a “ Quarterly Payment Date ”); provided that, in the event that the Company is prohibited from paying interest in cash pursuant to the terms of any Senior Indebtedness (defined below), such interest owing will be added to the principal amount outstanding on each Quarterly Payment Date and treated as principal for all purposes under this Note on and after such date.

(c) Excess Cash Flow Mandatory Prepayments . Not later than 90 days after the end of each fiscal year (or for the year in which the Closing (as defined in the Merger Agreement) occurs, partial fiscal year as described in clause (x) below) of Merger Sub and its consolidated subsidiaries (the “ Consolidated Company ”) in which there is Excess Cash Flow of the Consolidated Company, the Company, to the extent not prohibited by the terms of any Senior Indebtedness or Applicable Law, will make a prepayment of principal outstanding under this Note, in an amount equal to the lesser of (1) the principal amount then outstanding under this Note and (2) the product of (x) 100% of Excess Cash Flow for such fiscal year (or for the fiscal year in which the Closing occurs, the partial fiscal year for the period from the Closing Date (as defined in the Merger Agreement) through the end of such fiscal year) and (y) a fraction, the numerator of which is the principal outstanding under this Note and the denominator of which is the principal outstanding under the Total Dividend Notes.


(d) Optional Prepayments . The Company may at any time, and from time to time, prepay, without premium or penalty, all or any portion of the Company’s obligations under this Note. All such prepayments shall be applied first to pay all accrued but unpaid interest and then to pay outstanding principal.

2. Payment of Note . All payments and prepayments of principal of and interest on this Note shall be made to the registered Holder, in lawful money of the United States of America by wire transfer of immediately available funds to a United States bank account designated in writing by the Holder (or at such other place as the holder hereof shall notify the Company in writing).

3. Subordination .

(a) To the extent and in the manner provided in this Note, the payment of any principle of, interest on, and fees, expenses and other amounts in respect of, this Note is and shall be expressly subordinated and junior in right of payment to the prior payment in full of all Senior Indebtedness, and each obligation under this Note is subordinated to the prior payment in full of the Senior Indebtedness. Notwithstanding the foregoing sentence or any provision of this Note to the contrary, until all Senior Indebtedness has been indefeasibly paid in full in cash, and no holder of any Senior Indebtedness has any commitment to extend any credit to Perini Corporation, a Massachusetts corporation (“ Perini ”) or any of its subsidiaries under the Credit Agreement or any other instrument or agreement executed in connection therewith, the Company may make, and Holder may receive, scheduled payments of principal and interest on this Note when due, so long as:

(i) Perini shall have delivered to Agent on or before the fifth (5 th ) Business Day preceding the date of each such payment, a duly completed compliance certificate signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of Perini, reflecting Perini’s pro forma compliance with each of the financial covenants set forth in the Credit Agreement immediately prior to, and after giving effect to, such payment; together with a detailed calculation of how the amount of such payment was determined and be accompanied by financial statements in support of such calculation; and

(ii) no payment Default under the Credit Agreement shall have occurred and be continuing and Agent has not provided a notice that a material Event of Default has occurred and is continuing.

(b) Holder shall not accelerate the maturity of any amounts owing under this Note, or commence or join with any other creditor of the Company, any of its subsidiaries or any other obligor in respect of any Senior Indebtedness in commencing any Proceeding.

(c) The Company and Holder shall not agree to any amendment, modification or

 

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supplement to this Note without the prior written consent of the Agent, which consent may be withheld or delayed in the sole and absolute discretion of the Agent for any reason, or no reason, or to the grant of any security for this Note or guaranty of this Note.

(d) In the event of any Proceeding involving the Company: (i) all Senior Indebtedness shall first be indefeasibly paid in full in cash before any payment of or with respect to this Note shall be made; (ii) any payment or distribution of any kind or character, whether in cash or property or securities, which but for these subordination provisions would be payable or deliverable to Holder in respect of this Note shall be paid or delivered to Agent for application to the Senior Indebtedness until all Senior Indebtedness has been indefeasibly paid in full incash; and (iii) Holder hereby irrevocably authorizes, empowers and appoints the Agent as its agent and attorney-in-fact to so execute, verify, deliver and file any claim for such payments or distributions, which power shall be deemed to be coupled with an interest (but the Agent shall not have any obligations to take any such action).

(e) Holder agrees not to initiate, prosecute or in any way participate or consult with any other person to initiate or prosecute any claim, action or other proceedings challenging the validity, priority, extent or enforceability or any of the Senior Indebtedness or any liens and security interest securing the Senior Indebtedness. The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the subordination provisions of this Note shall continue to govern the relative rights and priorities of Holder and holders of the Senior Indebtedness even if all or part of the Senior Indebtedness or any security interests securing the Senior Indebtedness is rescinded or must otherwise be returned.

(f) If Holder received any payment in violation of the subordination provisions of this Note, Holder, by acceptance of this Note, agrees to hold such payment in trust for the benefit of Agent and the holders of the Senior Indebtedness and, promptly upon either having actual knowledge that such payment was prohibited, or upon notice from Agent, to pay such amounts to the Agent for application to the Senior Indebtedness. The term “payment” includes any distribution of assets or any set-off or recoupment of any kind for the benefit of Holder made from the assets of Perini, the Company, any of its subsidiaries or any other obligor in respect of any Senior Indebtedness.

(g) The subordination provisions of this Note, and the Company’s and Holder’s obligations hereunder, are continuing, absolute and unconditional and not subject to any reduction, limitation, impairment, termination, defense or recoupment whatsoever by reason of, or be otherwise diminished by, any of the following: (i) any extension, modification or renewal of, or indulgence with respect to, or substitution for, any replacement or refinancing of, the Senior Indebtedness or any part thereof or any agreement relating thereto at any time; (ii) any failure or omission to perfect or maintain any lien or security interest on, or preserve rights to, any security or collateral or to enforce any right, power or remedy with respect to the Senior Indebtedness or any part thereof or any agreement relating thereto, or any collateral securing the Senior Indebtedness or any part thereof; (iii) any waiver of any right, power or remedy or of any default with respect to the Senior Indebtedness or any part thereof or any agreement relating thereto or with respect to any collateral securing the Senior Indebtedness or any part thereof; (iv) any release, surrender, compromise, settlement, waiver, subordination or modification, with or without consideration, of, any collateral securing the Senior Indebtedness or any part thereof, any

 

3


guaranties with respect to the Senior Indebtedness or any part thereof, or any other obligations of any person or entity with respect to the Senior Indebtedness or any part thereof (v) the enforceability or validity of the Senior Indebtedness or any part thereof or any agreement relating thereto or with respect to any collateral securing the Senior Indebtedness or any part thereof; or (vi) the disallowance of all or any portion of any claims for repayment of the Senior Indebtedness under section 502 or 506 of the United States Bankruptcy Code. The Agent and the holders of any of the Senior Indebtedness may take any action or exercise any remedy with respect to the Senior Indebtedness and any collateral therefor from time to time and at any time in their sole discretion, without notice to Holder.

(h) The Company and Holder, by its acceptance of the Note, acknowledge and agree that the subordination provisions of the Note are for the express benefit of the Agent and the holders of the Senior Indebtedness and may be enforced directly the Agent and by such holders.

4. Event of Default; Consequences . If the Company fails to pay when due any amount (whether interest, principal or other amount) then payable on this Note, then, subject to the provisions of Section 3 hereof, the Holder may, by notice of default and acceleration given to the Company, declare the entire outstanding principal amount of this Note, together with all accrued and unpaid interest thereon, immediately due and payable.

5. Waiver of Presentment . The Company hereby waives presentment for payment, demand, protest, and notice of demand, protest and nonpayment, and any other notice that might be required by law, and consents to any and all renewals or extensions that might be made by the Holder as to the time of payment of this Note from time to time.

6. Replacement and Cancellation .

(a) Replacement of Lost Note . Upon receipt of evidence reasonably satisfactory to the Company (an affidavit of the Holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of this Note and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company (provided that, if the holder is an employee of the Company, its own agreement shall be satisfactory), or, in the case of any such mutilation, upon the surrender of such Note to the Company at its principal office, the Company shall (at its expense) execute and deliver, in lieu thereof, a new Note of the same class and representing the same rights represented by such lost, stolen, destroyed or mutilated Note and dated so that there will be no loss of interest on such Note. Any Note in lieu of which any such new Note has been so executed and delivered by the Company shall not be deemed to be an outstanding Note.

(b) Cancellation . After all principal, accrued interest and all other amounts at any time owed on this Note have been paid in full, this Note shall be surrendered to the Company for cancellation.

7. Business Days . If any payment is due, or any time period for giving notice or taking action expires, on a day which is not a business day, in the State of New York, the payment shall be due and payable on, and the time period shall automatically be extended to, the next business day immediately following, and interest shall continue to accrue at the required rate hereunder until any such payment is made.

 

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8. Governing Law . This Note shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

9. Merger Agreement . This Note has been executed and delivered pursuant to and in accordance with the terms and conditions of the Merger Agreement, as in effect on the date hereof. Capitalized terms used in this Note without separate definition shall have the respective meanings given to them in the Merger Agreement.

10. Successors and Assigns . This Note may not be assigned or transferred by the Company or the Holder without the prior written consent of the other party hereto and the Agent. Each assignment or transfer shall be recorded by the Company in the Register. Any transfer or assignment in violation of this Section 10 shall be void, and the Company shall not recognize such purported transferee as a holder of this Note. The terms and provisions of this Note shall inure to the benefit of the Agent and each of the other holders of the Senior Indebtedness.

11. Register . The Company shall maintain a register (the “ Register ”) in which it records the name and address of each Holder of a Note and the principal amount and interest outstanding with respect thereto from time to time. The parties shall treat the registered holder of a Note as the Holder for all purposes, absent manifest error.

12. Amendments . The provisions of this Note may not be amended, supplemented, replaced or otherwise modified in any manner without the prior written consent of the Holder and the Company, and the Agent in accordance with Section 3(c) hereof. To the extent that the Credit Agreement is replaced or refinanced, the Holder and the Company will consent to (and execute and deliver) any amendments reasonably necessary to give effect to the documentation governing such replacement or refinancing indebtedness to preserve the economic position of the parties hereto.

13. Defined Terms . The following terms shall have the following meanings when used herein:

Agent ” shall mean Bank of America, N.A., as Administrative Agent, together with any successor Administrative Agent under the Credit Agreement. In the event the Credit Agreement is with a single lender, “Agent” shall refer to such lender.

Bankruptcy Law ” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute, and any similar law for the relief of debtors.

 

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Consolidated Net Income ” shall mean, for any period, the net income of Merger Sub and its subsidiaries (the “ Consolidated Group ”) for such period determined on a consolidated basis in accordance with GAAP.

Credit Agreement ” shall mean that certain Third Amended and Restated Credit Agreement dated as of September 8, 2008 among Perini, the Company, certain subsidiaries of Perini, Agent, Lenders, Banc of America Securities LLC, as Sole Lead Arranger and Book Manger, and Bank of America, N.A., as Swing Line Lender and L/C Issuer, as may be amended, supplemented, amended and restated or otherwise modified or as refinanced, extended, renewed, defeased, restructured, replaced from time to time.

Excess Cash Flow ” shall mean, for any period, an amount equal to the excess of: the sum, without duplication, of Consolidated Net Income for such period, an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income, an amount equal to the provision for taxes based on income, profits or capital of the Consolidated Group, including federal, foreign, state, franchise, excise and similar taxes and foreign withholding taxes paid during such period (or accrued during such period and payable within 180 days after the last day of such period) to the extent deducted in arriving at such Consolidated Net Income, and an amount equal to the aggregate consolidated net non-cash loss on the sale, lease, transfer or other disposition of assets by the Consolidated Group during such period (other than sales, leases, transfers or other dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income, less the sum, without duplication, of an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income and included in arriving at such Consolidated Net Income, the consolidated amount of capital expenditures made in cash during such period, except to the extent that such capital expenditures were financed with the proceeds of indebtedness, the aggregate consolidated amount of all principal payments of indebtedness of the Consolidated Group made during such period, including payments made under the Total Dividend Notes (other than in respect of any revolving credit facility to the extent there is not an equivalent permanent reduction in commitments thereunder), except to the extent financed with the proceeds of other Indebtedness, an amount equal to the aggregate net non-cash gain on the sale, lease, transfer or other disposition of assets by the Consolidated Group during such period (other than sales in the ordinary course of business) to the extent included in arriving at such Consolidated Net Income, the amount of taxes (including penalties and interest) paid in cash in such period, and the amount of cash expenses paid to effect the transaction described in the Merger Agreement.

 

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Note Payment ” means any payment or distribution of any kind or character, whether direct or indirect, by setoff or otherwise, from any source, whether in cash, property or securities, on or in respect of the Note or any amounts due thereunder or on account of any purchase, redemption, rescission of purchase, defeasance or other acquisition of the Note.

Obligations ” shall mean any and all Obligations, as defined in the Credit Agreement, and any and all other obligations (including guaranty obligations) with respect to the payment and performance of (a) any principal of or interest or premium on any indebtedness, including, without limitation, any reimbursement obligation in respect of any letter of credit, or any other liability, (b) any fees, indemnification obligations, expense reimbursement obligations or other liabilities payable under the documentation governing any indebtedness (including, without limitation, the retaking, holding, selling or otherwise disposing of or realizing on any collateral), (c) any obligation to post cash collateral in respect of letters of credit or any other obligations, and (d) all performance obligations under the documentation governing any indebtedness.

Proceeding ” shall mean (a) any voluntary or involuntary case or proceeding under any applicable Bankruptcy Law with respect to the Company, (b) any other voluntary or involuntary insolvency, reorganization, arrangement or bankruptcy case or proceeding, or any receivership, liquidation, reorganization, arrangement or other similar case or proceeding with respect to the Company or with respect to a material portion of its respective assets, (c) any liquidation, dissolution, reorganization or winding up of the Company whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company.

Remedies ” shall mean the acceleration of the Note or the exercise of any remedies in respect of any default thereunder (including, without limitation, any right of setoff or similar right, any right of collection, repayment, prepayment, repurchase, redemption or put right, the right to sue the Company or to file or participate in any involuntary Proceeding or take any other action under law, against the Company but excluding in any event the imposition additional interest pursuant to Section 1(b)).

Senior Indebtedness ” means all Obligations outstanding under the Credit Agreement, including, without limitation, (i) principal, (ii) interest (including all interest after the commencement of any Proceeding and/or any claim for such interest which would have accrued in the absence of such Proceeding, whether or not allowed as a claim in a Proceeding), (iii) out-of-pocket costs, (iv) fees (including reasonable attorneys’ fees and out-of-pocket disbursements), (v) out-of-pocket expenses, and (vi) otherwise, in each case whether or not allowed as a claim in any Proceeding.

14. Third Party Beneficiaries . The holders of Senior Indebtedness are intended third party beneficiaries hereof and the subordination provisions set forth herein are for the benefit of the holders of Senior Indebtedness (and their successors and assigns) and shall be enforceable by them directly against the Holder (and its successors and assigns). This Section 14 shall constitute a continuing offer to all persons who become holders of or who continue to hold Designated Senior Indebtedness (whether such Designated Senior Indebtedness was created or acquired before or after the issuance of the Notes).

* * * * * *

 

7


IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Note as of the date first written above.

 

TUTOR-SALIBA CORPORATION
By:  

 

Title:  

 

 

ACCEPTED AND AGREED:

[SHAREHOLDER]

By:

 

 

Title:

 

 

Exhibit 99.1

FOR IMMEDIATE RELEASE

PERINI CORPORATION SHAREHOLDERS

APPROVE ACQUISITION OF TUTOR-SALIBA CORPORATION

Framingham, MA – September 5, 2008 – Perini Corporation (NYSE: PCR), a leading building, civil construction and construction management company, said its shareholders today approved the acquisition of Tutor-Saliba Corporation at the Annual Meeting of Perini shareholders. Perini announced that it expects to close the transaction on Monday, September 8, 2008.

The proposal to approve the issuance of the shares in the merger was approved by over 88 percent of shareholders voting on the proposal. All other proposals related to the merger were also approved by shareholders.

In addition, Perini shareholders also elected all of the company nominees to the Board of Directors and approved all other proposals presented to shareholders at the Annual Meeting, including an amendment to increase the number of shares authorized for issuance under Perini’s 2004 Stock Option and Incentive Plan.

Michael R. Klein, Lead Director of Perini, said, “I am delighted that Perini’s shareholders have approved this transaction, and by a margin that clearly illustrates enthusiasm about the significantly enhanced shareholder value that we expect the combination of these two highly successful and complementary companies – Perini and Tutor-Saliba – will create.

“By combining, growing and diversifying the best talent of both companies, growing our backlog of booked and targeted projects and diversifying our reach into promising new segments of the market, this transaction will create the premiere publicly-traded general contractor in the United States and overseas,” concluded Mr. Klein.

On April 2, 2008, Perini announced that it had entered into a definitive agreement to acquire the privately-held Tutor-Saliba. On August 7, 2008, Perini mailed to its shareholders a Proxy Statement that contained important information regarding the transaction, which involves issuing to the shareholders of Tutor-Saliba equal to 45% of the then total outstanding shares of Perini Corporation.

About Perini Corporation

Perini Corporation is a leading construction services company offering diversified general contracting, construction management and design/build services to private clients and public agencies throughout the world. We have provided construction services since 1894 and have established a strong reputation within our markets by executing large complex projects on time and within budget while adhering to strict quality control measures.


We offer general contracting, pre-construction planning and comprehensive project management services, including the planning and scheduling of the manpower, equipment, materials and subcontractors required for a project. We also offer self-performed construction services including sitework, concrete forming and placement and steel erection. We are known for our hospitality and gaming industry projects, sports and entertainment, educational, transportation, healthcare, biotech, pharmaceutical and high-tech facilities, as well as large and complex civil construction projects and construction management services to U.S. military and government agencies.

FORWARD LOOKING STATEMENTS AND ADDITIONAL INFORMATION

The statements contained in this release that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including without limitation, statements regarding the Company’s expectations, hopes, beliefs, intentions or strategies regarding the future. These forward-looking statements are based on the Company’s current expectations and beliefs concerning future developments and their potential effects on the Company. There can be no assurance that future developments affecting the Company will be those anticipated by the Company. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond the control of the Company) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by such forward-looking statements. These risks and uncertainties include, but are not limited to, actions taken or not taken by third parties, including the Company’s customers, suppliers, business partners, and competitors and legislative, regulatory, judicial and other governmental authorities and officials; the ability to satisfy the conditions to the transaction with Tutor-Saliba on the expected timeframe or at all; transaction costs from the transaction with Tutor-Saliba; the effects of disruption from the transaction with Tutor-Saliba making it more difficult to maintain relationships with employees, customers, other business partners or government entities; the ability to realize the expected synergies resulting for the transaction with Tutor-Saliba in the amounts or in the timeframe anticipated and the ability to integrate Tutor-Saliba’s businesses into those of Perini in a timely and cost-efficient manner. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable laws.

This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.

 

Contact Information
Perini Corporation

73 Mount Wayte Ave.

Framingham, MA 01701

(508) 628-2295
Kenneth R. Burk,
Senior Vice President & Chief Financial Officer
Kekst and Company, Inc.

437 Madison Avenue

New York, NY 10022

(212) 521-4855
Douglas Kiker

Exhibit 99.2

FOR IMMEDIATE RELEASE

PERINI CORPORATION COMPLETES ACQUISITION

OF TUTOR-SALIBA CORPORATION

Framingham, MA – September 8, 2008 – Perini Corporation (NYSE: PCR), a leading building, civil construction and construction management company, announced today that it has completed its acquisition of Tutor-Saliba Corporation. In connection with today’s closing, Perini amended its articles of organization to increase the number of authorized shares of Perini common stock and issued 22,987,293 shares of Perini common stock to the former shareholders of Tutor-Saliba in the merger.

Ronald N. Tutor, Chairman and CEO of Perini and the principal shareholder of Tutor-Saliba, said, “Today marks the beginning of an exciting new era for Perini, an era in which we intend to capitalize on the additional resources, personnel and expertise we are adding through this transaction to create additional value for Perini shareholders. Perini and Tutor-Saliba have worked closely together on joint venture projects for over 30 years, and we anticipate that the integration of the two companies will be smooth. I am honored to lead this company.”

On April 2, 2008, Perini announced that it had entered into a definitive agreement to combine with privately-held Tutor-Saliba. On August 7, 2008, Perini had mailed to its shareholders a proxy statement that contained important information regarding the transaction.

About Perini Corporation

Perini Corporation is a leading construction services company offering diversified general contracting, construction management and design/build services to private clients and public agencies throughout the world. We have provided construction services since 1894 and have established a strong reputation within our markets by executing large complex projects on time and within budget while adhering to strict quality control measures.

We offer general contracting, pre-construction planning and comprehensive project management services, including the planning and scheduling of the manpower, equipment, materials and subcontractors required for a project. We also offer self-performed construction services including sitework, concrete forming and placement and steel erection. We are known for our hospitality and gaming industry projects, sports and entertainment, educational, transportation, healthcare, biotech, pharmaceutical and high-tech facilities, as well as large and complex civil construction projects and construction management services to U.S. military and government agencies.

FORWARD LOOKING STATEMENTS AND ADDITIONAL INFORMATION

The statements contained in this release that are not purely historical are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934, including without limitation, statements regarding the Company’s expectations, hopes, beliefs, intentions or strategies regarding


the future. These forward-looking statements are based on the Company’s current expectations and beliefs concerning future developments and their potential effects on the Company. There can be no assurance that future developments affecting the Company will be those anticipated by the Company. These forward-looking statements involve a number of risks, uncertainties (some of which are beyond the control of the Company) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by such forward-looking statements. These risks and uncertainties include, but are not limited to, actions taken or not taken by third parties, including the Company’s customers, suppliers, business partners, and competitors and legislative, regulatory, judicial and other governmental authorities and officials; transaction costs from the transaction with Tutor-Saliba; the effects of disruption from the transaction with Tutor-Saliba making it more difficult to maintain relationships with employees, customers, other business partners or government entities; the ability to realize the expected synergies resulting for the transaction with Tutor-Saliba in the amounts or in the timeframe anticipated and the ability to integrate Tutor-Saliba’s businesses into those of Perini in a timely and cost-efficient manner. The Company undertakes no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable laws.

This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.

 

Contact Information
Perini Corporation

73 Mount Wayte Ave.

Framingham, MA 01701

(508) 628-2295
Kenneth R. Burk,
Senior Vice President & Chief Financial Officer
Kekst and Company, Inc.

437 Madison Avenue

New York, NY 10022

(212) 521-4855
Douglas Kiker