AMENDMENT TO SEPARATION AGREEMENT
This Amendment to Separation Agreement ("Amendment) is made and entered
into as of the 18th day of March, 1998, by and among Xxxxx Xxxxxx Sons',
Inc., a Delaware corporation ("PKS"), Xxxxx 0 Communications, Inc. (formerly,
Kiewit Diversified Group Inc.), a Delaware corporation ("Level 3"), PKS
Holdings, Inc., a Delaware corporation ("PKS Holdings") and Kiewit
Construction Group Inc., a Delaware corporation ("KCG," and together with
PKS, Xxxxx 0, and PKS Holdings, collectively the "Parties" or individually a
"Party").
PRELIMINARY STATEMENT. The Parties have previously entered into a
Separation Agreement dated as of December 8, 1997 (the "Separation
Agreement"), with respect to a series of transactions (collectively, the
"Transaction") intended to separate the construction businesses of PKS and
the diversified businesses of PKS into two separate and independent
companies. The Parties desire to amend the Separation Agreement to provide
for the modification of certain cost allocation provisions thereof, in the
event of the occurrence of certain specified events.
NOW, THEREFORE, in consideration of the premises, the Parties hereby
agree as follows:
1. Section 1.01 of the Separation Agreement is hereby amended by
adding the following definitions:
"Conversion Event: the issuance of shares of Class D Stock in exchange for
all of the outstanding shares of Class R Stock pursuant to the approval by
the PKS Board, or any successor, of a "Forced Conversion" ( as defined in the
PKS Certificate)."
"Forced Conversion Date: the date of issuance of shares of Class D Stock
pursuant to the Conversion Event."
2. Section 3.06(b) of the Separation Agreement is hereby amended in
its entirety to read as follows:
"(b) PKS will record the Class R Distribution, and register all
persons entitled to the Class R Distribution as holders of Class R Stock, on
the books and records maintained by or on behalf of PKS for the registration of
ownership of the capital stock of PKS, effective as of the Class R Distribution
Record Date. PKS will not issue certificates or other instruments to evidence
Class R Stock unless and until the Share Exchange is consummated, and in any
event, no sooner than June 30, 1998. If the Share Exchange is consummated, PKS
will issue and distribute certificates evidencing the Class R Stock. If the
Class R Distribution is consummated, but the Transaction is later abandoned,
PKS will exercise its rights to repurchase all of the Class R Stock under
Section IX.M of the Initial Certificate Amendment as promptly as practicable
after abandonment of the Transaction."
3. Section 7.01 of the Separation Agreement is amended in its
entirety to read as follows:
"7.01 General. The Parties have agreed to allocate the financial
burden of Covered Expenses 82.5% to the Diversified Group and 17.5% to the
Construction Group (the "Expense Sharing Ratio"), whether the Transaction is
consummated or abandoned; provided, however, that in the event that the Forced
Conversion Date occurs on or before July 15, 1998, the Expense Sharing Ratio
shall be modified so that the Construction Group incurs 100% of the Covered
Expenses. In such event, the Construction Group will reimburse the Diversified
Group for any Covered Expenses paid by the Diversified Group prior to the
Forced Conversion Date. All other costs or expenses incurred by any Party in
connection with the Transaction will be borne by the Party incurring the cost
or expense."
4. A paragraph shall be added as Section 7.02 (c)of the Separation
Agreement and shall read in its entirety as follows:
"(d) The Parties acknowledge that in the event the Forced
Conversion Date occurs on or before July 15, 1998, and the Expense Sharing
Ratio is modified as provided in Section 7.01 above, any success fees, xxxx-
ups, bonuses, equity participation or amounts in excess of regularly billable
hours, payable to the advisors described in (i), (ii), (iii) and (iv) of
Section 7.02(a), shall be incurred solely for the account of the Diversified
Group, and shall not be considered to be Covered Expenses.
5. Section 7.04 of the Separation Agreement is amended in its entirety to
read as follows:
"7.04 Covered Expense True-Up. KDG will prepare and submit to KCG,
within 120 calendar days after the date of abandonment of the Transaction or
the Exchange Date, as the case may be, a schedule of the Other Covered
Expenses, together with such supporting documentation with respect to the Other
Covered Expenses as KCG reasonably requests. Within five calendar days after
the submission of that schedule, KDG or KCG, as the case may be, will pay KCG
or KDG, as the case may be, in cash, an amount sufficient to ensure that the
financial burden of the Covered Expenses has been allocated between KCG and KDG
in proportion to the Expense Sharing Ratio."
6. Unless otherwise specified, capitalized terms used herein shall
have the meanings specified in the Separation Agreement.
7. Any other changes or modifications to the Separation Agreement
necessary to conform such agreement to this Amendment are hereby deemed to be
made. In all other respects, not inconsistent with this Amendment, the terms
of the Separation Agreement, not specifically or by necessary implication
amended or modified hereby, shall be and remain in full force and effect as
modified hereby.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed as of the date first above written.
XXXXX XXXXXX SONS', INC.
By: /s/ Xxxxxx Xxxxx, Xx.
Xxxxxx Xxxxx, Xx., President
XXXXX 0 COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, President
PKS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
KIEWIT CONSTRUCTION GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, President
