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Exhibit 2.1
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into as of
August 8, 2000 by and among ▇▇▇▇▇ ▇▇▇▇▇▇ SONS', INC., a Delaware corporation
("PKS"), KIEWIT MATERIALS COMPANY, a Delaware corporation ("KMC") and ▇▇▇▇▇▇
CONSTRUCTION GROUP INC., a Delaware corporation ("KCG", and together with PKS
and KMC, collectively the "Parties" or individually a "Party").
PRELIMINARY STATEMENTS. PKS conducts its operations primarily through
two distinct segments. One segment primarily involves the production and retail
sale of ready-mix concrete, asphalt, sand, gravel, landscaping materials and
railroad ballast (the "Materials Segment"). KMC serves as a holding company for
the subsidiaries of PKS in the Materials Segment. The other segment of PKS'
operations primarily involves the performance of construction and construction
management activities (the "Construction Segment"). KCG serves as a holding
company for the subsidiaries of PKS in the Construction Segment.
The Board of Directors of PKS has determined to pursue a series of
transactions intended to separate the Construction Segment and the Materials
Segment into two separate independent companies (collectively, the
"Transaction"). The Parties desire to provide for the principal corporate
transactions necessary to consummate the Transaction, the relationships among
the Parties and the allocation of risks and responsibilities among the Parties
should the Transaction be consummated, and certain other matters.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Parties, intending to be legally
bound, hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
1.0 GENERAL. Capitalized terms used herein but not elsewhere
defined shall have the following meanings:
1.1 AFFILIATE: shall mean, with respect to any Person, a Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person;
provided, however, that for purposes of this Agreement, no member of either
Group will be deemed to be an Affiliate of any member of the other Group.
1.2 AGREEMENT: shall mean this Separation Agreement by and among
PKS, KCG and KMC, as the same may hereafter be amended.
1.3 ASSET: shall mean any and all assets and properties, whether
real, personal or mixed, tangible or intangible, wherever located, and whether
or not recorded or reflected or required to be recorded on the books and
records or financial statements of any Person, including, without limitation,
the following: (i) cash, cash equivalents, bank accounts, lock boxes and other
deposit arrangements, notes, deposits, letters of credit, performance and
surety bonds, trade accounts and other accounts and notes receivable (whether
current or non-current); (ii) certificates of deposit, banker's acceptances,
stock, debentures, evidences of indebtedness, certificates of interest or
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participation in profit-sharing agreements, collateral-trust certificates,
preorganization certificates or subscriptions, capital contributions, joint
venture and partnership interests, transferable shares, investment contracts,
voting-trust certificates, fractional undivided interests in oil, gas or other
mineral rights, puts, calls, straddles, options and other securities or equity
interests of any kind or in any Person; (iii) trade secrets, confidential
information, registered and unregistered trademarks, service marks, service
names, trade styles and trade names and associated goodwill; statutory, common
law and registered copyrights; domestic and foreign patents, applications for
any of the foregoing, rights to use the foregoing and other rights in, to and
under the foregoing; (iv) rights under leases, contracts, licenses, permits,
distribution arrangements, sales and purchase agreements, other agreements and
business arrangements; (v) real estate, all interests in real estate of
whatever nature and buildings and other improvements thereon; (vi) leasehold
improvements; (vii) raw materials, work-in-process, finished goods, consigned
goods and other inventories; (viii) prepayments or prepaid expenses; (ix)
claims, causes of action, choses in action, rights of recovery and rights of
set-off of any kind; (x) the right to receive mail, payments on accounts
receivable and other communications; (xi) lists of advertisers, records
pertaining to advertisers and accounts, personnel records, lists and records
pertaining to suppliers and agents, and books, ledgers, files and business
records of every kind, whether in paper, microfilm, microfiche, computer tape
or disk, magnetic tape or any other form; (xii) advertising materials and other
printed or written materials; (xiii) goodwill as a going concern and other
intangible properties; (xiv) employee contracts, including any rights
thereunder to restrict an employee from competing in certain respects; (xv)
licenses and authorizations issued by any governmental authority; (xvi) all
apparatus, computers and other electronic data processing equipment, fixtures,
machinery, equipment, furniture, office equipment and supplies, miscellaneous
supplies and spare parts, automobiles, trucks, aircraft, rolling stock,
vessels, motor vehicles and other transportation equipment, special and general
tools, test devices, prototypes and models and other tangible personal property
of any kind; (xvii) all written technical information, data, specifications,
research and development information, engineering drawings, operating and
maintenance manuals, and materials and analyses prepared by consultants and
other third parties; (xiii) all computer applications, programs and other
software, including operating software, network software, firmware, middleware,
design software, design tools, systems documentation and instructions; (xix)
all cost information, sales and pricing data, customer prospect lists, supplier
records, customer lists, customer and vendor data, correspondence and lists,
product literature, artwork, design, development and manufacturing files,
vendor and customer drawings, (xx) formulations and specifications, quality
records and reports and other books, records, studies, surveys, reports, plans
and documents; and (xxi) except as otherwise expressly provided herein, all
rights under insurance policies and all rights in the nature of insurance,
indemnification or contribution.
1.4 CODE: shall mean the Internal Revenue Code of 1986, as
amended, or any successor legislation, together with the rules and regulations
promulgated thereunder.
1.5 CONSTRUCTION ASSETS: shall mean all of the Assets utilized
immediately prior to the Effective Date by any member of the Construction Group
in connection with the Construction Business.
1.6 CONSTRUCTION BUSINESS: shall mean all of the businesses and
operations conducted at, or at any time before, the Effective Date by PKS or
any Subsidiary of PKS, other than the Materials Business.
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1.7 CONSTRUCTION GROUP: shall mean KCG and the Subsidiaries of KCG
as of the Effective Date.
1.8 CONSTRUCTION INDEMNITEES: shall mean any member of the
Construction Group, any Construction Individual and any Affiliate of any member
of the Construction Group.
1.9 CONSTRUCTION INDIVIDUAL: shall mean any individual who at any
time prior to the Effective Date was a director, officer or employee of any
member of the Construction Group, but solely to the extent that any Loss
incurred by such Person is incurred in that capacity.
1.10 CONSTRUCTION LIABILITIES: shall mean all of the Liabilities
arising out of or resulting from the Construction Business.
1.11 CONSTRUCTION SECURITIES TRANSACTIONS: shall mean the offer to
sell or the sale of PKS Stock, PKS Debentures or New PKS Debentures.
1.12 CONSTRUCTION SEGMENT: shall mean the segment of PKS'
operations primarily involving the performance of construction and construction
management activities.
1.13 CONTINUING AGREEMENTS: shall mean any agreements between a
member or members of the Construction Group, on one hand, and a member or
members of the Materials Group, on the other hand which are not specifically
terminated pursuant to Section 5.4 of this Agreement.
1.14 DEBENTURES: shall mean, collectively, the New PKS Debentures
and the KMC Debentures.
1.15 DEBENTURE EXCHANGE: shall mean the exchange of PKS Debentures
for: (a) KMC Debentures or (b) both New PKS Debentures and KMC Stock, as
described in Section 3.2.
1.16 DEBENTURE EXCHANGE DATE: shall mean the date upon which the
Debenture Exchange occurs.
1.17 DIVIDEND CONDITION: shall mean, with respect to the
distribution in connection with the KMC Stock Distribution, a determination by
the PKS Board that such distribution by PKS will (a) comply with the PKS
Certificate, as then amended and/or restated, (b) will be made out of surplus,
within the meaning of Section 170 of the Delaware General Corporation Law and
(c) will not result in the insolvency of PKS under applicable fraudulent
conveyance or fraudulent transfer statutes.
1.18 EFFECTIVE DATE: shall mean the date on which the KMC Stock
Distribution is made, which will be a date determined by the PKS Board that
occurs after satisfaction of all of the conditions set forth in Section 2.4.
1.19 EXCHANGE ACT: shall mean the Securities Exchange Act of 1934,
together with the rules and regulations promulgated thereunder.
1.20 GROUP: shall mean either of the Construction Group or the
Materials Group.
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1.21 INDEMNIFYING PARTY: shall mean a Person who or which is
obligated under Article IV to provide indemnification.
1.22 INDEMNITEE: shall mean a Person entitled to indemnification
under Article IV.
1.23 INDEMNITY PAYMENT: shall mean an amount that an Indemnifying
Party is required to pay to an Indemnitee pursuant to Article IV.
1.24 INFORMATION: shall mean all information whether or not
patentable or copyrightable, in written, oral, electronic or other tangible or
intangible forms, stored in any medium, including studies, reports, records,
books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys (including attorney-client privileged communications), memos and
other materials prepared by attorneys or under their direction (including
attorney work product), computer data and other technical, financial, employee
or business information.
1.25 KCG: shall mean Kiewit Construction Group Inc., a Delaware
corporation.
1.26 KMC: shall mean Kiewit Materials Company, a Delaware
corporation.
1.27 KMC DEBENTURES: shall mean the debentures of KMC convertible
into shares of KMC Stock which are distributed in the Debenture Exchange.
1.28 KMC STOCK DISTRIBUTION: shall mean the distribution of KMC
Stock by PKS to holders of record of PKS Stock on the KMC Stock Distribution
Record Date as described in Section 3.3.
1.29 KMC STOCK DISTRIBUTION RECORD DATE: shall mean the date which
is selected by the PKS Board as the record date for determining holders of
record of PKS Stock entitled to receive shares of KMC Stock in the KMC Stock
Distribution.
1.30 KMC SHARE EXCHANGE: shall mean the exchange of PKS Stock for
KMC Stock as described in Section 3.1.
1.31 KMC SHARE EXCHANGE DATE: shall mean the date on which the KMC
Share Exchange occurs.
1.32 LIABILITIES: shall mean all debts, liabilities and
obligations, whether absolute or contingent, matured or unmatured, liquidated
or unliquidated, accrued or unaccrued, known or unknown, whenever or however
arising, and whether or not the same would properly be reflected on a balance
sheet, including all related costs and expenses.
1.33 LOSSES: shall mean all losses, Liabilities, damages, actions,
claims, suits, demands, proceedings, inquiries, investigations, judgments or
settlements of any nature or kind, known or unknown, fixed, accrued, absolute
or contingent, liquidated or unliquidated, including all related costs and
expenses (legal, accounting or otherwise as such costs are incurred) suffered
by an Indemnitee.
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1.34 MATERIALS ASSETS: shall mean all of the Assets utilized
immediately prior to the Effective Date by any member of the Materials Group in
connection with the Materials Business.
1.35 MATERIALS BUSINESS: shall mean all of the businesses and
operations conducted at, or at any time before, the Effective Date, by KMC or
any Subsidiary of KMC, other than the business and operations formerly
conducted by Guernsey Stone Company (formerly Guernsey Stone and Construction
Company) on or before March 1, 1999, and now conducted by Guernsey Construction
Company.
1.36 MATERIALS EMPLOYEES: shall mean employees of the Materials
Group.
1.37 MATERIALS GROUP: shall mean KMC and all of the Subsidiaries of
KMC as of the Effective Date.
1.38 MATERIALS INDEMNITEES: shall mean any member of the Materials
Group, any Materials Individual and any Affiliate of any member of the
Materials Group.
1.39 MATERIALS INDIVIDUAL: shall mean any individual who at any
time prior to the Effective Date was a director, officer or employee of any
member of the Materials Group, but solely to the extent that any Loss incurred
by such Person is incurred in that capacity.
1.40 MATERIALS LIABILITIES: shall mean all of the Liabilities
arising out of or resulting from the Materials Business.
1.41 MATERIALS SECURITIES TRANSACTIONS: shall mean the offer to
sell or the sale of KMC Stock or KMC Debentures.
1.42 MATERIALS SEGMENT: shall mean the segment of PKS' operations
primarily involving the production and retail sale of ready-mix concrete,
asphalt, sand, gravel, landscaping materials and railroad ballast.
1.43 NEW PKS DEBENTURES: shall mean the new reduced principal
debentures of PKS convertible into shares of PKS Stock which are distributed in
the Debenture Exchange.
1.44 PARTY: shall mean any of PKS, KMC or KCG and "Parties" shall
mean all of PKS, KMC and PKS, collectively.
1.45 PKS: shall mean ▇▇▇▇▇ ▇▇▇▇▇▇ Sons', Inc., a Delaware
corporation.
1.46 PKS BOARD: shall mean the board of directors of PKS (or the
executive committee of the board of directors of PKS, if the executive
committee of the board of directors of PKS has the authority to take the action
required under this Agreement).
1.47 PKS CERTIFICATE: shall mean the Restated Certificate of
Incorporation of PKS, as in effect on the date of this Agreement.
1.48 PKS D&O POLICY: shall mean the directors' and officers'
liability insurance policy maintained by PKS for directors and officers of PKS
and its Subsidiaries.
1.49 PKS DEBENTURES: shall mean PKS' outstanding Series 1997
through Series 1999 Convertible Debentures.
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1.50 PKS DEBENTURE SHARES: shall mean the shares of PKS Stock into
which the PKS Debentures are convertible.
1.51 PKS STOCK: shall mean the common stock of PKS, par value $.01
per share.
1.52 PKS STOCKHOLDERS: shall mean the holders of PKS Stock.
1.53 PERSON: shall mean an individual, a partnership, a limited
partnership, a joint venture, a limited liability company, a corporation, a
trust, an unincorporated organization, any other entity or a government or any
department or agency thereof.
1.54 REGISTRATION STATEMENTS: shall mean the registration statement
filed by PKS and KMC on Form S-4 (Registration No. 333-30760-01), the
registration statement filed by KMC on Form S-4 (Registration No. 333-30768)
and the registration statement filed by KMC on Form 10 (Registration No.
000-29619) pursuant to the Securities Act and the Exchange Act, as amended from
time to time, including the exhibits thereto.
1.55 REPRESENTATIVE: shall mean, with respect to any Person, any of
such Person's affiliates, directors, officers, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
1.56 RULING: shall mean the ruling obtained by PKS from the Service
regarding certain U.S. Federal income tax matters of the Transaction.
1.57 SEC: shall mean the Securities and Exchange Commission.
1.58 SECURITIES ACT: shall mean the Securities Act of 1933, as
amended, together with the rules and regulations promulgated thereunder.
1.59 SERVICE: shall mean the United States Internal Revenue
Service.
1.60 SEPARATION TRANSACTIONS: shall mean, collectively, the
transactions described in Section 3.1 through 3.3 of this Agreement.
1.61 SUBSIDIARY: shall mean, with respect to any specified Person,
any corporation or other legal entity of which such Person or any of its
Subsidiaries controls or owns, directly or indirectly, all or a portion of the
stock or other equity interest entitled to vote on the election of members to
the board or similar governing body.
1.62 TAX: shall have the meaning specified in the Tax Sharing
Agreement.
1.63 TAX SHARING AGREEMENT: shall mean the tax sharing agreement
between PKS and KMC to be entered into as of the Effective Date, in form and
substance mutually satisfactory to all of the Parties.
1.64 THIRD-PARTY CLAIM: shall mean any claim, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any governmental
or other regulatory or administrative agency or commission or any arbitration
tribunal asserted by a Person who is not a member of a Group.
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1.65 TRANSACTION: shall mean all of the transactions contemplated
by this Agreement, taken together, the effect of which are to separate the
Construction Segment and the Materials Segment.
ARTICLE II
CONDITIONS TO TRANSACTION; FAILURE TO CONSUMMATE THE TRANSACTION
2.1 REGISTRATION STATEMENTS. (a) PKS and KMC have prepared and
filed the Registration Statements.
(b) As promptly as practicable following the date of this
Agreement (to the extent not theretofore accomplished):
(i) PKS and KMC will use their respective best efforts to cause
such Registration Statements to be declared effective and to effect the
Transaction in accordance with the terms of this Agreement and final approval
by the PKS Board, including by (1) responding promptly to any comments from the
SEC with respect thereto, and (2) taking such other actions as shall be
reasonably required in order to have the Registration Statements declared
effective as soon as reasonably practicable following the date hereof.
(ii) PKS and KMC shall take all such actions as may be necessary or
appropriate to register or qualify the KMC Stock and the Debentures under state
securities or "Blue Sky" Laws or such other actions under such laws as is
necessary or appropriate in connection with the Transaction.
2.2 CONDITIONS TO TRANSACTION. The Transaction will be consummated
only if (a) the Ruling remains in effect, (b) the Dividend Condition has been
satisfied with respect to the KMC Stock Distribution, (c) all of the other
Separation Transactions have been consummated, and (d) the PKS Board has
finally approved the consummation of the Transaction.
2.3 PKS BOARD RIGHT TO DEFER, MODIFY OR ABANDON TRANSACTION.
Notwithstanding any other provision of this Agreement or prior approval of the
PKS Board, (a) prior to consummation of the Transaction, the Parties will defer
or modify the Transaction or this Agreement in any respect deemed appropriate
by the PKS Board, and (b) the Parties will abandon the Transaction at any time
if the PKS Board, by a duly adopted resolution, determines that consummation of
the Transaction is no longer in the best interest of all PKS Stockholders.
Nothing herein shall limit or otherwise affect the PKS Board's ability to
proceed with the Transaction at a later date.
2.4 CONSEQUENCES OF FAILURE TO CONSUMMATE THE TRANSACTION. If the
Parties abandon or otherwise fail to consummate the Transaction, Articles III,
IV, V and VI of this Agreement will terminate and have no further force or
effect, the Parties will not be obligated to consummate any of the Separation
Transactions that have not then been consummated, and only this Section 2.4 and
Articles I, VII and VIII of this Agreement will remain binding on the Parties
and have any further force or effect.
ARTICLE III
THE SEPARATION TRANSACTIONS
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3.1 KMC SHARE EXCHANGE. PKS will conduct an exchange offer for all
outstanding shares of PKS Stock held by Materials Employees (the "KMC Share
Exchange"). Materials Employees who hold shares of PKS Stock will have the
option to either: (a) exchange their shares of PKS Stock for shares of KMC
Stock or (b) not participate in the KMC Share Exchange. On the KMC Share
Exchange Date, PKS will exchange shares of KMC Stock for shares of PKS Stock
with an aggregate formula value equal to the aggregate formula value of the
shares of PKS Stock tendered for exchange in the KMC Share Exchange. Materials
Employees who do not participate in the KMC Share Exchange will be required to
sell their shares of PKS Stock back to PKS immediately following the
consummation of the Transaction.
3.2 DEBENTURE EXCHANGE. (a) PKS will conduct an exchange offering
for all of its outstanding PKS Debentures (the "Debenture Exchange"). Holders
of PKS Debentures will have the option: (i) to exchange their PKS Debentures
for KMC Debentures; (ii) to exchange their PKS Debentures for both shares of
KMC Stock and New PKS Debentures; or (iii) not to participate in the Debenture
Exchange.
(b) Holders of PKS Debentures who tender their PKS Debentures in
exchange for KMC Debentures will receive KMC Debentures in the same principal
amount as the tendered PKS Debentures and which are convertible into shares of
KMC Stock with an aggregate formula value equal to the formula value of the PKS
Stock into which the tendered PKS Debentures were convertible. The interest
rate payable on the KMC Debentures will be the higher of the applicable federal
rate, or the interest rate payable on the PKS Debentures tendered for exchange.
The KMC Debentures will contain provisions limiting ownership thereof after the
consummation of the Transaction to Materials Employees.
(c) Holders of PKS Debentures who tender their PKS Debentures in
exchange for both KMC Stock and New PKS Debentures will receive New PKS
Debentures, convertible into the same number of shares of PKS Stock as the
tendered PKS Debentures, and a number of shares of KMC Stock equal to the
number of shares of KMC Stock the holders would have received in the KMC Stock
Distribution, had the PKS Debentures been converted immediately prior to the
KMC Stock Distribution Record Date and participated in the KMC Stock
Distribution. The principal amount of the New PKS Debentures will be reduced by
the formula value of the KMC Stock received in the Debenture Exchange. The
interest rate payable on the New PKS Debentures will be the higher of the
applicable federal rate, or the interest rate payable on the PKS Debentures
tendered for exchange.
(d) On the Debenture Exchange Date, PKS will: (i) exchange New PKS
Debentures and KMC Stock for PKS Debentures tendered for exchange in the
Debenture Exchange by those holders so electing such consideration; (ii)
exchange KMC Debentures for PKS Debentures tendered for exchange in the
Debenture Exchange by those holders so electing such consideration; and (iii)
pay all accrued interest due and owing through the Debenture Exchange Date on
all PKS Debentures tendered in the Debenture Exchange.
(e) Any PKS Debentures not tendered for exchange in the Debenture
Exchange will remain outstanding and governed by the original terms of the PKS
Debentures.
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(f) On the Debenture Exchange Date, PKS will make a capital
contribution to KMC in the amount of the formula value of the underlying shares
of KMC Stock issuable pursuant to the KMC Debentures issued in the Debenture
Exchange.
3.3 KMC STOCK DISTRIBUTION. PKS will declare a dividend, payable
to holders of PKS Stock as of the KMC Stock Distribution Record Date, of one
share of KMC Stock for each share of PKS Stock held as of the KMC Stock
Distribution Record Date (the "KMC Stock Distribution").
3.4 KMC RECAPITALIZATION. Immediately prior to the Debenture
Exchange Date and the KMC Share Exchange Date, KMC shall effect a stock split
sufficient such that after taking into account the number of shares of KMC
Stock to be distributed in the KMC Share Exchange, there are a sufficient
number of remaining outstanding shares of KMC Stock to distribute one share of
KMC Stock for each outstanding share of PKS Stock in the KMC Stock Distribution
and one share of KMC Stock for each PKS Debenture Share to holders of PKS
Debentures who tendered PKS Debentures in the Debenture Exchange and elected to
receive KMC Stock and New PKS Debentures.
3.5 ISSUANCE OF SECURITIES. (a) KMC will distribute to PKS the
number of shares of KMC Stock issuable in connection with the recapitalization
specified in Section 3.4, evidenced by two certificates, promptly upon such
recapitalization. The number of shares of KMC Stock represented by each
certificate shall be determined by PKS in its sole discretion.
(b) As promptly as practicable after the Effective Date, KMC will
deliver to PKS, in exchange for all shares of KMC Stock held by PKS,
certificates for KMC Stock in names and denominations sufficient to permit PKS
to distribute certificates for KMC Stock in the KMC Stock Distribution, the KMC
Share Exchange and the Debenture Exchange.
(c) As promptly as practicable after the close of the Debenture
Exchange, KMC will deliver to PKS, KMC Debentures in such names and
denominations sufficient to permit PKS to distribute KMC Debentures in the
Debenture Exchange.
3.6 CERTIFICATE DISTRIBUTION. PKS will coordinate delivery of
certificates for any shares of KMC Stock or Debentures with any lending
institution to which shares of PKS Stock or PKS Debentures have been pledged.
PKS will arrange for delivery of such securities and will, if directed in
writing by the holder thereof, deliver such securities directly to such lending
institution.
3.7 ORGANIZATION OF KMC. Prior to the Effective Date, PKS and KMC
shall take any and all actions that are reasonably necessary or desirable to be
taken to effectuate the Transactions in a manner consistent with the terms of
this Agreement, including, without limitation, the following: (a) amending the
Certificate of Incorporation of KMC so that the provisions thereof at the
Effective Date shall incorporate the provisions as described in the
Registration Statements; (b) amending the By-Laws of KMC so that the provisions
thereof at the Effective Date shall incorporate the provisions as described in
the Registration Statements; (c) adopting, preparing and implementing
appropriate plans, agreements and arrangements for employees of KMC and
non-employee directors of KMC; and (d) electing or otherwise appointing those
individuals designated in the Registration Statements to be directors or
officers of KMC, effective as of or prior to the Effective Date, except for
those to be elected or appointed thereafter.
ARTICLE IV
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INDEMNIFICATION
4.1 INDEMNIFICATION. (a) From and after the Effective Date, KMC
will indemnify, defend and hold harmless each Construction Indemnitee from and
against all Losses incurred or suffered by any Construction Indemnitee arising
out of or due to, directly or indirectly, (i) any breach by KMC of any
obligation under this Agreement, (ii) the Materials Assets, (iii) the Materials
Business, (iv) Materials Securities Transactions, and (v) the Materials
Liabilities.
(b) From and after the Effective Date, PKS and KCG will
indemnify, defend and hold harmless each Materials Indemnitee from and against
all Losses incurred or suffered by any Materials Indemnitee arising out of or
due to, directly or indirectly, (i) any breach by PKS or KCG of any obligation
under this Agreement, (ii) the Construction Assets, (iii) the Construction
Business, (iv) Construction Securities Transactions, and (v) the Construction
Liabilities.
(c) This Section 4.1 shall not apply to any matter or
item specifically covered by indemnification or risk allocation provisions of
the Continuing Agreements.
(d) If an Indemnitee realizes a Tax benefit or detriment
by reason of having incurred a Loss for which such Indemnitee receives an
Indemnity Payment from an Indemnifying Party or by reason of receiving an
Indemnity Payment, such Indemnitee shall pay to such Indemnifying Party an
amount equal to the Tax benefit, or such Indemnifying Party shall pay to such
Indemnitee an additional amount equal to the Tax detriment (taking into account
any Tax detriment resulting from the receipt of such additional amounts), as
the case may be. If, in the opinion of counsel to an Indemnifying Party
reasonably satisfactory in form and substance to the affected Indemnitee, there
is a substantial likelihood that the Indemnitee will be entitled to a Tax
benefit by reason of an Indemnifiable Loss, the Indemnifying Party promptly
shall notify the Indemnitee and the Indemnitee promptly shall take any steps
(including the filing of such returns, amended returns or claims for refunds
consistent with the claiming of such Tax benefit) that, in the reasonable
judgment of the Indemnifying Party, are necessary and appropriate to obtain any
such Tax benefit. If, in the opinion of counsel to an Indemnitee reasonably
satisfactory in form and substance to the affected Indemnifying Party, there is
a substantial likelihood that the Indemnitee will be subjected to a Tax
detriment by reason of an Indemnification Payment, the Indemnitee promptly
shall notify the Indemnifying Party and the Indemnitee promptly shall take any
steps (including the filing of such returns or amended returns or the payment
of Tax underpayments consistent with the settlement of any Liability for Taxes
arising from such Tax detriment) that, in the reasonable judgment of the
Indemnitee, are necessary and appropriate to settle any Liabilities for Taxes
arising from such Tax detriment. If, following a payment by an Indemnitee or an
Indemnifying Party pursuant to this Section 4.1(d) in respect of a Tax benefit
or detriment, there is an adjustment to the amount of such Tax benefit or
detriment, then each of the Indemnifying Party and the Indemnitees shall make
appropriate payments to the other to reflect such adjustments.
(e) The amount which an Indemnifying Party is required to
pay to any Indemnitee pursuant to this Section 4.1 will be reduced (including
retroactively) by any insurance proceeds and other amounts actually recovered
by such Indemnitee in reduction of the related Loss, it being understood and
agreed that the members of each Group will use their commercially reasonable
efforts to collect any such proceeds or other amounts to which they are
entitled, without regard to whether it is the Indemnifying Party hereunder. If
an Indemnitee receives an Indemnity Payment in respect of an Indemnifiable Loss
and subsequently receives insurance proceeds or other amounts in respect of
such Indemnifiable Loss, then such Indemnitee shall pay to such
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Indemnifying Party an amount equal to the difference between (i) the sum of the
amount of such Indemnity Payment and the amount of such insurance proceeds or
other amounts actually received and (ii) the amount of such Loss, adjusted (at
such time as appropriate adjustment can be determined) in each case to reflect
any premium adjustment attributable to such claim.
(f) No person other than an Indemnitee is intended to be
a beneficiary of the indemnification provisions set forth above, and no insurer
will be relieved thereby of any obligation to pay any claims to which it is
obligated or be entitled to any right of subrogation with respect to any amount
paid hereunder.
4.2 PROCEDURE FOR INDEMNIFICATION. (a) If any Indemnitee
determines that it is or may be entitled to indemnification by any Indemnifying
Party (other than in connection with any Third Party Claim), the Indemnitee
will deliver to the Indemnifying Party a written notice specifying, to the
extent reasonably practicable, the basis for its claim for indemnification and
the amount for which the Indemnitee reasonably believes it is entitled to be
indemnified. Within 60 calendar days after receipt of such notice, the
Indemnifying Party will pay the Indemnitee such amount in cash or other
immediately available funds unless the Indemnifying Party objects to the claim
for indemnification or the amount by written notice setting forth the grounds
therefor within such 60 calendar day period. If the Indemnifying Party does not
give the Indemnified Party written notice objecting to such indemnity claim and
setting forth the grounds therefor within 60 calendar days after receipt of
such notice, the Indemnifying Party will be deemed to have acknowledged its
liability for such claim and the Indemnitee may exercise any and all of its
rights under applicable law to collect such amount.
(b) If any Indemnitee receives notice of the assertion of
any Third-Party Claim with respect to which an Indemnifying Party is obligated
under this Agreement to provide indemnification, such Indemnitee will give such
Indemnifying Party notice thereof promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of any Indemnitee to
give such notice will not relieve any Indemnifying Party of its obligations
under this Article IV, except to the extent that such Indemnifying Party is
actually prejudiced by such failure to give notice. Such notice will describe
such Third-Party Claim in reasonable detail and, if practicable, will indicate
the estimated amount of the Indemnifiable Loss that has been or may be
sustained by such Indemnitee.
(c) An Indemnifying Party, at such Indemnifying Party's
own expense and through counsel chosen by such Indemnifying Party (which
counsel shall be reasonably satisfactory to the Indemnitee), may elect to
defend any Third-Party Claim. If an Indemnifying Party elects to defend a
Third-Party Claim, then, within fifteen calendar days after receiving notice of
such Third-Party Claim (or sooner, if the nature of such Third-Party Claim so
requires), such Indemnifying Party will notify the Indemnitee of its intent to
do so, and such Indemnitee shall cooperate in the defense of such Third-Party
Claim. Such Indemnifying Party will pay such Indemnitee's reasonable
out-of-pocket expenses incurred in connection with such cooperation. After
notice from an Indemnifying Party to an Indemnitee of its election to assume
the defense of a Third-Party Claim, such Indemnifying Party will not be liable
to such Indemnitee under this Article IV for any legal or other expenses
subsequently incurred by such Indemnitee in connection with the defense
thereof; provided, however, that such Indemnitee will have the right to employ
one law firm as counsel to represent such Indemnitee (which firm shall be
reasonably acceptable to the Indemnifying Party) if, in such Indemnitee's
reasonable judgment, either a conflict of interest between such Indemnitee and
such Indemnifying Party exists in respect of such claim or there may be
defenses available to such
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Indemnitee which are different from or in addition to those available to such
Indemnifying Party, and in that event (i) the reasonable fees and expenses of
such separate counsel shall be paid by such Indemnitee and (ii) each of such
Indemnifying Party and such Indemnitee shall have the right to run its own
defense in respect of such claim. If an Indemnifying Party elects not to defend
against a Third-Party Claim, or fails to notify an Indemnitee of its election
as provided in this Section 4.2 within the period of fifteen calendar days
described above, such Indemnitee may defend, compromise and settle such
Third-Party Claim; provided, however, that no such Indemnitee may compromise or
settle any such Third-Party Claim without the prior written consent of the
Indemnifying Party, which consent shall not be withheld unreasonably.
Notwithstanding the foregoing, the Indemnifying Party shall not, without the
prior written consent of the Indemnitee, (i) settle or compromise any
Third-Party Claim or consent to the entry of any judgment which does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to the Indemnitee of a written release from all liability in respect
of such Third-Party Claim or (ii) settle or compromise any Third-Party Claim in
any manner that in the reasonable judgment of the Indemnifying Party, is likely
to adversely affect the Indemnitee.
(d) If for any reason the indemnification provided by
this Agreement is unenforceable, the Indemnifying Party will contribute to the
amount payable by the Indemnitee as a result of the related losses an amount
appropriate to reflect equitable considerations.
4.3 REMEDIES CUMULATIVE. The remedies provided in this Article IV
will be cumulative and will not preclude assertion by any Indemnitee of any
other rights or the seeking of any other remedies against any Indemnifying
Party.
ARTICLE V
ADDITIONAL COVENANTS
5.1 FURTHER ASSURANCES. Each of the Parties will use its best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things, reasonably necessary, proper or advisable under applicable
laws, regulations and agreements to consummate and make effective the
Transaction. Each Party will cooperate with the other Parties, and execute and
deliver, or use its best efforts to cause to be executed and delivered, all
instruments, including instruments of conveyance, assumption, assignment and
transfer, and to make all filings with, and to obtain all consents, approvals
or authorizations of, any governmental or regulatory authority or any other
Person under any permit, license, agreement, indenture or other instrument, and
take all such other actions as such Party may reasonably be requested to take
by any other Party, consistent with the terms of this Agreement, in order to
effectuate the provisions and purposes of this Agreement.
5.2 TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES. (a) The Parties
intend that, upon consummation of the Transaction, (i) one or more members of
the Construction Group, and not any member of the Materials Group, will hold
all right, title and interest in and to all Construction Assets, and that one
or more members of the Construction Group, and not any member of the Materials
Group, will have the sole liability for Construction Group Liabilities; and
(ii) one or more members of the Materials Group, and not any member of the
Construction Group, will hold all right, title and interest in and to all
Materials Assets, and one or more members of the Materials Group, and not any
member of the Construction Group, will have the sole liability for all
Materials Group Liabilities.
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(b) Prior to the Effective Date, each Party will take any
action, and will cause their Subsidiaries to take any action, requested by any
member of the other Group entitled under Section 5.2(a) to obtain an Asset or
to be relieved of a Liability, reasonably necessary to transfer any such Asset
or to assume any such Liability. If any such transfer or assumption of Assets
or Liabilities is not consummated on or before the Effective Date, the Party
retaining such Asset or Liability will hold such Asset in trust for the use and
benefit of the Party entitled thereto (at the expense of the Party entitled
thereto), or will retain such Liability for the account of the Party by whom
such Liability is to be assumed pursuant hereto, as the case may be, and will
take such other action as may be reasonably requested by the Party to whom such
Asset is to be transferred (including licensing, contracting and leasing
arrangements), or by whom such Liability is to be assumed, in order to place
such Party, insofar as reasonably possible, in the same position as if such
Asset or Liability had been transferred as contemplated hereby. If and when any
such Asset or Liability becomes transferable, such transfer will be effected as
promptly as possible.
(c) Notwithstanding any other provision of this
Agreement, this Agreement will not constitute an agreement to transfer any
Asset or assume any Liability if an assignment of the Asset or the assumption
of the Liability violates any law, rule or regulation or constitutes a breach
of any agreement relating to such Asset or Liability.
5.3 NO REPRESENTATIONS OR WARRANTIES. Each Group understands and
agrees that no member of the other Group is, in this Agreement, representing or
warranting in any way as to the Assets, the Business or the Liabilities of the
Group or as to any consents or approvals required in connection with the
consummation of the transactions contemplated by this Agreement, it being
agreed and understood that each Group is taking all of its Assets "as is, where
is" and that each Group will bear the economic and legal risk that the title of
any member of the Group to any Assets shall be other than good and marketable
and free from encumbrances.
5.4 TERMINATED AGREEMENTS. On or before the Effective Date, the
Parties will agree to a schedule of agreements, contracts and arrangements that
will terminate and have no further force or effect as of the Effective Date.
Each Party shall, at the reasonable request of another Party, take or cause to
be taken, such other actions as may be necessary to effect the termination of
such agreements. To the extent that there are such agreements, such schedule
shall be attached hereto as Schedule 5.4.
5.5 CONTINUING AGREEMENTS. Neither this Agreement nor the
Transaction shall modify, amend or otherwise affect any of the Continuing
Agreements. If there is a conflict between this Agreement and a Continuing
Agreement, the Continuing Agreement shall control.
5.6 INTERCOMPANY ACCOUNTS. Effective as of the close of business
on the day prior to the Effective Date, all intercompany receivables or
payables and loans then existing between any member of one Group and any member
of the other Group will be settled by way of payment or offset.
5.7 KIEWIT NAME. From and after the Effective Date, KMC shall have
a revocable non-exclusive right and license to use the name "Kiewit" solely as
part of KMC's name. Use by KMC of the name "Kiewit" shall be limited solely in
combination with the name "Materials." PKS may revoke such license at any time
upon the sole determination of the PKS Board. As soon as reasonably practicable
following such revocation, KMC will change its corporate name to another name
not including "Kiewit" as part of the name, and will cause all of its
Subsidiaries to change their corporate names if necessary to corporate names not
including "Kiewit" as part of the name. In addition, as soon as reasonably
practicable after such
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revocation, KMC will use its best efforts to, and will cause its Subsidiaries
to use their best efforts to, cease using "Kiewit" in connection with the
business activities of the Materials Group.
5.8 INSURANCE. (a) As of the Effective Date, directors and
officers of the members of the Materials Group will no longer be covered by the
PKS D&O Policy for acts occurring on and after the Effective Date. KMC will
obtain, effective not later than the Effective Date, directors and officers
liability insurance for all directors and officers of the members of the
Materials Group, on such terms and conditions and providing such coverages as
KMC deems appropriate.
(b) No Party shall, without the consent of the other Parties,
provide any insurance carrier with a release, or amend, modify or waive any
rights under any such policy or agreement, if such release, amendment,
modification or waiver would adversely affect any rights or potential rights of
another Group; provided, however, that the foregoing shall not preclude a Party
either from presenting any claim or from exhausting any policy limit.
(c) This Agreement shall not be considered as an attempted
assignment of any policy of insurance or as a contract of insurance and shall
not be construed to waive any right or remedy of the Parties in respect of any
insurance policy or any other contract or policy of insurance.
(d) From and after the Effective Date, KMC shall be entitled to
the benefit of any reserves held by any insurance carrier with respect to the
Materials Liabilities, and PKS shall be entitled to the benefit of any reserves
held by any insurance carrier with respect to the Construction Liabilities.
(e) On or before the Effective Date, the Parties will agree upon
the insurance policies in which PKS is the lead named insured which will be
amended to substitute KMC as the lead named insured effective as of the
Effective Date. Each Party shall, at the reasonable request of another Party,
take or cause to be taken, such other actions as may be necessary to effectuate
such change.
(f) Notwithstanding any other provision hereof, each Group shall
retain all rights of any insured party under each insurance policy and
insurance contract owned or maintained by PKS under which any member of such
Group is a named insured, including any right of indemnity and the right to be
defended by or at the expense of the insurer. Each Party shall pay its
allocable share of any retrospectively-rated premiums arising out of any claims
made by such Party under such insurance policies.
(g) The Parties agree to cooperate and provide reasonable
assistance to each other with regard to any dispute with any third party
(including insurers or third-party administrators) regarding any matter related
to any of the above insurance policies.
5.9 OTHER RELATIONSHIPS. The Parties agree to negotiate in good
faith and enter into on or before the Effective Date, mutually acceptable
arrangements with respect to the following matters: (a) the lease by KMC, on a
short-term basis, of office space from KCG in the KCG headquarters building at
Kiewit Plaza, Omaha, Nebraska; (b) the provision by KMC of certain services
related to the operation of ▇▇▇▇ Software by members of the Construction Group;
(c) the provision by PKS of interim administrative services to KMC; (d) the
treatment of Materials Employees who are participants prior to the Effective
Date in the 401(k) and profit sharing plans maintained by PKS; and (e)
administration of insurance claims with respect to policies maintained for the
benefit of both Groups prior to the Effective Date.
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5.10 NO RESTRICTIONS COMPETITIVE ACTIVITIES; CORPORATE
OPPORTUNITIES. It is the explicit intent of each of the Parties that the
provisions of this Agreement shall not include any non-competition or other
similar restrictive arrangements with respect to the range of business
activities which may be conducted by the Parties. Accordingly, each of the
Parties acknowledges and agrees that nothing set forth in this Agreement shall
be construed to create any explicit or implied restriction or other limitation
on (i) the ability of any Party to engage in any business or other activity
which competes with the business of any other Party, or (ii) the ability of any
Party to engage in any specific line of business or engage in any business
activity in any specific geographic area.
5.11 GUARANTEE OBLIGATIONS. KMC and its Subsidiaries shall
cooperate with PKS and use their best efforts to terminate all obligations of
PKS or any of its Subsidiaries (other than a member of the Materials Group)
under any loan, financing, lease, contract or other obligation in existence as
of the Effective Date pertaining to the Materials Business for which PKS or any
of its Subsidiaries (other than a member of the Materials Group) is or may be
liable, as guarantor, original tenant, primary obligor or otherwise. If such a
termination or substitution is not effected by the Effective Date, (a) KMC
shall indemnify and hold harmless PKS for any Losses arising from or relating
to any such obligations, and (b) from and after the Effective Date, KMC shall
not, and shall not permit any of its Subsidiaries to, enter into, renew or
extend the term of, increase its obligations under, or transfer to a third
party, any loan, lease, contract or other obligation for which PKS or its
Subsidiaries (other than a member of the Materials Group) is or may be liable
pursuant to any such obligation.
5.12 TAX SHARING AGREEMENT. The Parties agree to negotiate in good
faith and enter into the Tax Sharing Agreement on or before the Effective Date.
ARTICLE VI
INFORMATION
6.1 ACCESS TO INFORMATION. (a) As soon as practicable following
the Effective Date, and to the extent requested, each Group shall provide to
the other Group any documents, contracts, books, records and data (including
but not limited to minute books, stock registers, stock certificates and
documents of title) in its possession relating to such other Group or such
other Group's business and affairs; provided that if any such documents,
contracts, books, records or data relate to both Groups or the business and
operations of both Groups, each such Group shall provide to the other Group
true and complete copies of such documents, contracts, books, records or data.
(b) After the Effective Date, each Group will afford to
the other Group and to the other Group's Representatives reasonable access and
duplicating rights during normal business hours to all Information within such
Group's possession relating to such other Group's businesses, insofar as such
access is reasonably required by such other Group. In addition, KMC shall have
access during such time to Information of historical significance that relates
to the Materials Business. Without limiting the foregoing, Information may be
requested under this Section for audit, accounting, claims, litigation and tax
purposes, as well as for purposes of fulfilling disclosure and reporting
obligations.
6.2 PRODUCTION OF WITNESSES. After the Effective Date, each Group
will use reasonable efforts to make available to the other Group its
Representatives as witnesses to the extent that any
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such Person may reasonably be required in connection with any legal,
administrative or other proceedings in which the requesting Party may from time
to time be involved and will otherwise cooperate with the other Group, to the
extent reasonably required in connection with any such proceeding.
6.3 RETENTION OF RECORDS. Except as otherwise required by law or
agreed in writing, or as otherwise provided in the Continuing Agreements, each
Group will retain, for a period of at least ten years following the Effective
Date, all significant Information in such Group's possession or under its
control relating to the business of the other Group and, after the expiration
of such ten year period, prior to destroying or disposing of any such
Information, (a) the Group proposing to dispose of or destroy any such
Information shall provide no less than 90 calendar days' prior written notice
to the other Group, specifying the Information proposed to be destroyed or
disposed of, and (b) if, prior to the scheduled date for such destruction or
disposal, the other Group requests in writing that any of the Information
proposed to be destroyed or disposed of be delivered to such other Group, the
Group proposing to dispose of or destroy such Information promptly shall
arrange for the delivery of the requested Information to a location specified
by, and at the expense of, the requesting Group.
6.4 REIMBURSEMENT. Each Group providing information or witnesses
to the other Group, or otherwise incurring any expense under Sections 6.1, 6.2
or 6.3, including costs and expenses paid to third parties for storage of
Information on behalf of the other Group, will be entitled to receive from the
other Group, upon the presentation of invoices therefor, payment for all
out-of-pocket costs and expenses as may be reasonably incurred in providing
such information, witnesses or cooperation.
6.5 CONFIDENTIALITY. From and after the Effective Date, each Group
will hold, and shall use its reasonable best efforts to cause its
Representatives to hold, in confidence all Information concerning the other
Party obtained by it prior to the Effective Date or furnished to it by such
other Party pursuant to this Agreement or the Continuing Agreements, and will
not release or disclose such Information to any other Person, except its
Representatives, who will be bound by the provisions of this Section; provided,
however, that each Group may disclose such Information to the extent that (a)
disclosure in the opinion of such Group's counsel, is required or advisable
under applicable law (including the federal securities laws), or (b) such Group
can show that such Information was (i) available to such Group on a
nonconfidential basis prior to its disclosure by the other Group, (ii) in the
public domain through no fault of such Group or (iii) lawfully acquired by such
Party from other sources after the time that it was furnished to such Party
pursuant to this Agreement or the Continuing Agreements. Notwithstanding the
foregoing, each Group will be deemed to have satisfied its obligations under
this Section with respect to any Information if it exercises the same care with
regard to such Information as it takes to preserve confidentiality for its own
similar Information.
6.6 MAIL AND OTHER COMMUNICATIONS. After the Effective Date, a
Party may receive mail, telegrams, packages and other communications properly
belonging to another Party. Accordingly, at all times after the Effective Date,
each Party authorizes the other to receive and open all mail, telegrams,
packages and other communications received by it and not unambiguously intended
for the other Party or any of the other Party's officers or directors, and to
retain the same to the extent that they relate to the business of the receiving
Party or, to the extent that they do not relate to the business of the
receiving Party, the receiving Party shall promptly deliver such mail,
telegrams, packages or other communications (or, in case the same
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relate to both businesses, copies thereof) to the other Party as provided for
in Section 8.4 hereof. Any mail, telegram, package or other communication
received by a Party that is unambiguously intended for the other Party shall be
promptly delivered to the other Party as provided for in Section 8.4 hereof.
The provisions of this Section 6.6 are not intended to, and shall not, be
deemed to constitute an authorization by a Party to permit another Party to
accept service of process on its behalf and no Party is or shall be deemed to
be the agent of another for service of process purposes.
ARTICLE VII
EXPENSES
7.1 GENERAL. Except as otherwise provided in the Tax Sharing
Agreement, the Parties have agreed to allocate 100% of the financial burden of
all costs of the Transaction to the Construction Group, whether the Transaction
is consummated or abandoned.
ARTICLE VIII
MISCELLANEOUS
8.1 COMPLETE AGREEMENT. This Agreement, the Exhibits and
Schedules hereto and the agreements and other documents referred to herein will
constitute the entire agreement between the Parties with respect to the subject
matter hereof and will supersede all previous negotiations, commitments and
writings with respect to such subject matter.
8.2 SURVIVAL OF AGREEMENTS. All covenants and agreements of the
Parties contained in this Agreement will survive the Transaction.
8.3 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of Nebraska (other than the
laws regarding choice of laws and conflicts of laws) as to all matters,
including matters of validity, construction, effect, performance and remedies.
8.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable
telegram, telex or other standard form of telecommunications, or by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to PKS or KCG:
▇▇▇▇▇ ▇▇▇▇▇▇ Sons', Inc.
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to KMC:
Kiewit Materials Company
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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8.5 AMENDMENT AND MODIFICATIONS. This Agreement may be amended,
modified or supplemented, and any provision of this Agreement may be waived,
only by a written agreement signed by all of the Parties.
8.6 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES. This
Agreement and all of the provisions hereof will be binding upon and inure to
the benefit of the Parties, their successors and permitted assigns, but neither
this Agreement nor any of the rights, interest and obligations hereunder may be
assigned by any Party without the prior written consent of each of the other
Parties (which consent shall not be unreasonably withheld). This Agreement is
solely for the benefit of the Parties (and Indemnitees) and is not intended to
confer any rights or remedies upon any other Persons.
8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8.8 INTERPRETATION. (a) The Article and Section headings
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not in any way affect the
meaning or interpretation of this Agreement.
(b) The Parties intend that the Transaction will be a
distribution and exchange pursuant to Section 355(a) and Section 368(a)(1)(D)
of the Code, and all provisions of this Agreement will be so interpreted.
8.9 LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction will not invalidate or render
unenforceable such provision in any other jurisdiction. Each Party
acknowledges that money damages would be an inadequate remedy for any breach of
the provisions of this Agreement and agrees that the obligations of the Parties
under this Agreement will be specifically enforceable.
8.10 DISPUTE RESOLUTION. Except to the extent that a Party seeks
injunctive relief to enforce any particular provision of this Agreement, if, in
the event of any dispute or controversy arising out of this Agreement, its
performance, or breach, the Parties are unable to settle the dispute
themselves, within thirty (30) calendar days after the dispute arises, then the
dispute shall be referred for resolution by agreement between the President of
KMC and the President of PKS. In the event that the foregoing officers are
unable to resolve such dispute within thirty (30) calendar days, then the
Parties shall be free to pursue any other rights or remedies to which they may
be entitled.
8.11 SCHEDULES. All schedules referred to herein are a part of this
Agreement as if fully set forth herein.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ SONS', INC.
By
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
KIEWIT MATERIALS COMPANY
By
--------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇ CONSTRUCTION GROUP INC.
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
19
