Exhibit 4.1
PERINI CORPORATION
2004 STOCK OPTION AND INCENTIVE
PLAN
(as amended on September 5,
2008)
SECTION 1. GENERAL PURPOSE OF THE
PLAN; DEFINITIONS
The name of the plan is the Perini
Corporation 2004 Stock Option and Incentive Plan (the
“Plan”). The purpose of the Plan is to encourage and
enable the officers, employees, Non-Employee Directors and other
key persons (including consultants and prospective employees) of
Perini Corporation (the “Company”) and its Subsidiaries
upon whose judgment, initiative and efforts the Company largely
depends for the successful conduct of its business to acquire a
proprietary interest in the Company. It is anticipated that
providing such persons with a direct stake in the Company’s
welfare will assure a closer identification of their interests with
those of the Company, thereby stimulating their efforts on the
Company’s behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined
as set forth below:
“Act”
means the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
“Administrator”
is defined in
Section 2(a).
“Award”
or “Awards,”
except where referring to a particular category of grant under the
Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Deferred Stock Awards,
Restricted Stock Awards, Unrestricted Stock Awards and Dividend
Equivalent Rights.
“Board”
means the Board of Directors of the
Company.
“Code”
means the Internal Revenue Code of
1986, as amended, and any successor Code, and related rules,
regulations and interpretations.
“Committee” means the Committee of the Board referred to in
Section 2.
“Covered
Employee” means an
employee who is a “Covered Employee” within the meaning
of Section 162(m) of the Code.
“Deferred Stock
Award” means Awards
granted pursuant to Section 8.
“Dividend Equivalent
Right” means Awards
granted pursuant to Section 11.
“Effective
Date” means the
date on which the Plan is approved by stockholders as set forth in
Section 17.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Fair Market
Value” of the Stock
on any given date means the fair market value of the Stock
determined by its closing price on the New York Stock Exchange. If
there are no market quotations for such date, the determination
shall be made by reference to the last date preceding such date for
which there are market quotations.
“Incentive Stock
Option” means any
Stock Option designated and qualified as an
“incentive stock option”
as defined in Section 422 of the Code.
“Non-Qualified Stock
Option” means any
Stock Option that is not an Incentive Stock Option.
“Option”
or “Stock Option”
means any option to purchase shares of Stock granted pursuant to
Section 5.
“Performance
Cycle” means one or
more periods of time, which may be of varying and overlapping
durations, as the Administrator may select, over which the
attainment of one or more performance criteria will be measured for
the purpose of determining a grantee’s right to and the
payment of a Restricted Stock Award or Deferred Stock
Award.
“Restricted Stock
Award” means Awards
granted pursuant to Section 7.
“Stock”
means the Common Stock, par value
$1.00 per share, of the Company, subject to adjustments pursuant to
Section 3.
“Stock Appreciation
Right” means any
Award granted pursuant to Section 6.
“Subsidiary” means any corporation or other entity (other
than the Company) in which the Company has a controlling interest,
either directly or indirectly.
“Unrestricted Stock
Award” means any
Award granted pursuant to Section 9.
SECTION 2. ADMINISTRATION OF
PLAN; ADMINISTRATOR AUTHORITY TO SELECT GRANTEES AND DETERMINE
AWARDS
(a)
Committee
. The Plan shall be administered
by the Compensation Committee of the Board. (the
“Administrator”).
(b)
Powers of Administrator . The Administrator shall have
the power and authority to grant Awards consistent with the terms
of the Plan, including the power and authority:
(i) to
select the individuals to whom Awards may from time to time be
granted;
(ii) to
determine the time or times of grant, and the extent, if any, of
Incentive Stock Options, Non-Qualified Stock Options, Stock
Appreciation Rights, Restricted Stock Awards, Deferred Stock
Awards, Unrestricted Stock Awards and Dividend Equivalent Rights,
or any combination of the foregoing, granted to any one or more
grantees;
(iii) to
determine the number of shares of Stock to be covered by any
Award;
(iv) to
determine and modify from time to time the terms and conditions,
including restrictions, not inconsistent with the terms of the
Plan, of any Award, which terms and conditions may differ among
individual Awards and grantees, and to approve the form of written
instruments evidencing the Awards;
(v) to
accelerate at any time the exercisability or vesting of all or any
portion of any Award;
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(vi) subject
to the provisions of Section 5(a)(ii), to extend at any time
the period in which Stock Options may be exercised;
(vii) to determine
at any time whether, to what extent, and under what circumstances
distribution or the receipt of Stock and other amounts payable with
respect to an Award shall be deferred either automatically or at
the election of the grantee and whether and to what extent the
Company shall pay or credit amounts constituting interest (at rates
determined by the Administrator) or dividends or deemed dividends
on such deferrals; and
(viii) at any
time to adopt, alter and repeal such rules, guidelines and
practices for administration of the Plan and for its own acts and
proceedings as it shall deem advisable; to interpret the terms and
provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the
administration of the Plan .
All decisions and interpretations of
the Administrator shall be binding on all persons, including the
Company and Plan grantees.
(c)
Delegation of Authority to Grant Awards . The Administrator,
in its discretion, may delegate to the Chief Executive Officer of
the Company all or part of the Administrator’s authority and
duties with respect to the granting of Awards, to individuals who
are not subject to the reporting and other provisions of
Section 16 of the Exchange Act or “covered
employees” within the meaning of Section 162(m) of the
Code. Any such delegation by the Administrator shall include a
limitation as to the amount of Awards that may be granted during
the period of the delegation and shall contain guidelines as to the
determination of the exercise price of any Stock Option or Stock
Appreciation Right, the conversion ratio or price of other Awards
and the vesting criteria. The Administrator may revoke or amend the
terms of a delegation at any time but such action shall not
invalidate any prior actions of the Administrator’s delegate
or delegates that were consistent with the terms of the
Plan.
(d)
Indemnification . Neither the Board nor the Committee, nor
any member of either or any delegatee thereof, shall be liable for
any act, omission, interpretation, construction or determination
made in good faith in connection with the Plan, and the members of
the Board and the Committee (and any delegatee thereof) shall be
entitled in all cases to indemnification and reimbursement by the
Company in respect of any claim, loss, damage or expense
(including, without limitation, reasonable attorneys’ fees)
arising or resulting therefrom to the fullest extent permitted by
law and/or under any directors’ and officers’ liability
insurance coverage which may be in effect from time to
time.
SECTION 3. STOCK ISSUABLE UNDER
THE PLAN; MERGERS; SUBSTITUTION
(a)
Stock Issuable . The maximum number of shares of Stock
reserved and available for issuance under the Plan shall be
5,500,000 shares, subject to adjustment as provided in
Section 3(b). For purposes of this limitation, the shares of
Stock underlying any Awards (including any awards granted pursuant
to the Company’s Special Equity Incentive Plan which are
forfeited, canceled, held back upon exercise of
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an Option or settlement of an Award
to cover the exercise price or tax withholding, reacquired by the
Company prior to vesting, satisfied without the issuance of Stock
or otherwise terminated (other than by exercise)) shall be added
back to the shares of Stock available for issuance under the Plan.
Subject to such overall limitations, shares of Stock may be issued
up to such maximum number pursuant to any type or types of Award;
provided, however, that Stock Options or Stock Appreciation Rights
with respect to no more than 200,000 shares of Stock may be granted
to any one individual grantee during any one calendar year period.
The shares available for issuance under the Plan may be authorized
but unissued shares of Stock or shares of Stock reacquired by the
Company.
(b)
Changes in Stock . Subject to Section 3(c) hereof, if,
as a result of any reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split
or other similar change in the Company’s capital stock, the
outstanding shares of Stock are increased or decreased or are
exchanged for a different number or kind of shares or other
securities of the Company, or additional shares or new or different
shares or other securities of the Company or other non-cash assets
are distributed with respect to such shares of Stock or other
securities, or, if, as a result of any merger or consolidation,
sale of all or substantially all of the assets of the Company, the
outstanding shares of Stock are converted into or exchanged for a
different number or kind of securities of the Company or any
successor entity (or a parent or subsidiary thereof), the
Administrator shall make an appropriate or proportionate adjustment
in (i) the maximum number of shares reserved for issuance under the
Plan, (ii) the number of Stock Options or Stock Appreciation Rights
that can be granted to any one individual grantee and the maximum
number of shares that may be granted under a Performance-based
Award, (iii) the number and kind of shares or other securities
subject to any then outstanding Awards under the Plan, (iv) the
repurchase price, if any, per share subject to each outstanding
Restricted Stock Award, and (v) the price for each share subject to
any then outstanding Stock Options and Stock Appreciation Rights
under the Plan, without changing the aggregate exercise price
(i.e., the exercise price multiplied by the number of Stock Options
and Stock Appreciation Rights) as to which such Stock Options and
Stock Appreciation Rights remain exercisable. The adjustment by the
Administrator shall be final, binding and conclusive. No fractional
shares of Stock shall be issued under the Plan resulting from any
such adjustment, but the Administrator in its discretion may make a
cash payment in lieu of fractional shares.
The Administrator may also adjust
the number of shares subject to outstanding Awards and the exercise
price and the terms of outstanding Awards to take into
consideration material changes in accounting practices or
principles, extraordinary dividends, acquisitions or dispositions
of stock or property or any other event if it is determined by the
Administrator that such adjustment is appropriate to avoid
distortion in the operation of the Plan, provided that no such
adjustment shall be made in the case of an Incentive Stock Option,
without the consent of the grantee, if it would constitute a
modification, extension or renewal of the Option within the meaning
of Section 424(h) of the Code.
(c)
Mergers and Other Transactions . In the case of and subject
to the consummation of (i) the dissolution or liquidation of the
Company, (ii) the sale of all or substantially all of the
assets of the Company on a consolidated basis to an unrelated
person or entity, (iii) a merger, reorganization or consolidation
in which the outstanding shares of Stock are converted into or
exchanged for a different kind of securities of the
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successor entity and the holders of
the Company’s outstanding voting power immediately prior to
such transaction do not own 40 percent or more of the outstanding
voting power of the successor entity immediately upon completion of
such transaction, or (iv) the sale of 60 percent or more of the
Stock of the Company to an unrelated person or entity (in each
case, a “Sale Event”), all Options and Stock
Appreciation Rights that are not exercisable immediately prior to
the effective time of the Sale Event shall become fully exercisable
as of the effective time of the Sale Event and all other Awards
shall become fully vested and nonforfeitable as of the effective
time of the Sale Event, except as the Administrator may otherwise
specify with respect to particular Awards in the relevant Award
documentation. Upon the effective time of the Sale Event, the Plan
and all outstanding Awards granted hereunder shall terminate,
unless provision is made in connection with the Sale Event in the
sole discretion of the parties thereto for the assumption or
continuation of Awards theretofore granted by the successor entity,
or the substitution of such Awards with new Awards of the successor
entity or parent thereof, with appropriate adjustment as to the
number and kind of shares and, if appropriate, the per share
exercise prices, as such parties shall agree (after taking into
account any acceleration hereunder). In the event of such
termination, each grantee shall be permitted, within a specified
period of time prior to the consummation of the Sale Event as
determined by the Administrator, to exercise all outstanding
Options and Stock Appreciation Rights held by such grantee,
including those that will become exercisable upon the consummation
of the Sale Event; provided, however, that the exercise of Options
and Stock Appreciation Rights not exercisable prior to the Sale
Event shall be subject to the consummation of the Sale Event
.
Notwithstanding anything to the
contrary in this Section 3(c), in the event of a Sale Event
pursuant to which holders of the Stock of the Company will receive
upon consummation thereof a cash payment for each share surrendered
in the Sale Event, the Company shall have the right, but not the
obligation, to make or provide for a cash payment to the grantees
holding Options and Stock Appreciation Rights, in exchange for the
cancellation thereof, in an amount equal to the difference between
(A) the value as determined by the Administrator of the
consideration payable per share of Stock pursuant to the Sale Event
(the “Sale Price”) times the number of shares of Stock
subject to outstanding Options and Stock Appreciation Rights (to
the extent then exercisable at prices not in excess of the Sale
Price) and (B) the aggregate exercise price of all such outstanding
Options and Stock Appreciation Rights.
(d)
Substitute Awards . The Administrator may grant Awards under
the Plan in substitution for stock and stock based awards held by
employees, directors or other key persons of another corporation in
connection with the merger or consolidation of the employing
corporation with the Company or a Subsidiary or the acquisition by
the Company or a Subsidiary of property or stock of the employing
corporation. The Administrator may direct that the substitute
awards be granted on such terms and conditions as the Administrator
considers appropriate in the circumstances. Any substitute Awards
granted under the Plan shall not count against the share limitation
set forth in Section 3(a).
SECTION 4.
ELIGIBILITY
Grantees under the Plan will be such
full or part-time officers and other employees, Non-Employee
Directors and key persons (including consultants and prospective
employees) of the Company and its Subsidiaries as are selected from
time
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to time by the Administrator in its sole
discretion.
SECTION 5. STOCK
OPTIONS
Any Stock Option granted under the
Plan shall be in such form as the Administrator may from time to
time approve.
Stock Options granted under the Plan
may be either Incentive Stock Options or Non-Qualified Stock
Options. Incentive Stock Options may be granted only to employees
of the Company or any Subsidiary that is a “subsidiary
corporation” within the meaning of Section 424(f) of the
Code. To the extent that any Option does not qualify as an
Incentive Stock Option, it shall be deemed a Non-Qualified Stock
Option.
(a)
Grant of Stock Options . The Administrator in its discretion
may grant Stock Options to eligible employees, Non-Employee
Directors and key persons of the Company or any Subsidiary. Stock
Options granted pursuant to this Section 5(a) shall be subject
to the following terms and conditions and shall contain such
additional terms and conditions, not inconsistent with the terms of
the Plan, as the Administrator shall deem desirable. If the
Administrator so determines, Stock Options may be granted in lieu
of cash compensation at the optionee’s election, subject to
such terms and conditions as the Administrator may
establish.
(i)
Exercise Price . The exercise price per share for the Stock
covered by a Stock Option granted pursuant to this
Section 5(a) shall be determined by the Administrator at the
time of grant but shall not be less than 100 percent of the Fair
Market Value on the date of grant (other than options granted in
lieu of cash compensation). If an employee owns or is deemed to own
(by reason of the attribution rules of Section 424(d) of the
Code) more than 10 percent of the combined voting power of all
classes of stock of the Company or any parent or subsidiary
corporation and an Incentive Stock Option is granted to such
employee, the option price of such Incentive Stock Option shall be
not less than 110 percent of the Fair Market Value on the grant
date.
(ii)
Option Term . The term of each Stock Option shall be fixed
by the Administrator, but no Stock Option shall be
exercisable
