Exhibit 99.2
EXECUTIVE ENGAGEMENT AGREEMENT
This Executive Engagement Agreement (this "Agreement") is entered into as
of August 1, 1997 by and between ▇▇▇▇▇ ▇▇▇▇▇▇ Sons', Inc., a Delaware
corporation ("PKS"), Kiewit Diversified Group Inc., a Delaware corporation
("KDG"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Executive" and together with PKS and KDG, the
"Parties").
RECITALS
KDG wants to engage the Executive as its President and Chief Executive
Officer.
Broadband Capital Group, L.L.C., a Nebraska limited liability company
("Broadband"), the membership interests of which are owned by the Executive
(indirectly) and two other individuals (together, the "Owners"), currently is
developing a business plan. KDG wants the Executive to develop and implement
that business plan through an expansion of KDG's existing information services
business, with a view toward that business becoming the principal business of
KDG (the "Expansion Plan").
KDG is a direct, wholly-owned subsidiary of PKS. KDG owns, directly or
indirectly, all of the non-construction assets of PKS. PKS also conducts a
substantial construction business through its other direct, wholly-owned
subsidiary, Kiewit Construction Group Inc. ("KCG").
PKS has two classes of common stock. Class C Stock tracks the performance
of KCG; Class D Stock tracks the performance of KDG. Under the Restated
Certificate of Incorporation of PKS (the "Certificate"), holders of Class C
Stock elect two-thirds of the members of the board of directors of PKS (the "PKS
Board'). The Executive and KDG believe that the Expansion Plan can be best
developed by KDG only if KDG is separated from KCG, and the holders of Class C
Stock cease to control the business of KDG (through their control of the PKS
Board). The Executive is willing to accept the engagement only if, in the event
that a separation of the construction business and the diversified business of
PKS does not occur, he has the right to pursue the Expansion Plan independently
of PKS and KDG, and to purchase assets of KDG acquired or created in furtherance
of the Expansion Plan.
KDG and the Executive believe that the Executive should acquire a
substantial equity stake in the business of KDG, through the purchase of Class D
Stock, in order to align the interests of the Executive with those of the
holders of Class D Stock, and in order to provide the Executive with incentive
to maximize the value of Class D Stock.
In order to induce the Executive to become the President and Chief
Executive Officer of KDG, and in order to accomplish the other objectives
described above, the Parties agree as follows:
AGREEMENT
1. ENGAGEMENT. (a) KDG hereby engages the Executive as its President
and Chief Executive Officer. The Executive will be an at will employee of KDG,
and will serve at the direction and pleasure of the Board of Directors of KDG.
KDG will have the right to terminate the employment of the Executive at any
time, and the Executive will have the right to terminate his employment with KDG
at any time. All terms and conditions of the Executive's employment that are
not set forth in this Agreement or in a PKS D Shares Agreement substantially in
the form attached as Exhibit A to this Agreement (the "PKS D Shares Agreement")
will be as agreed by KDG and the Executive from time to time.
(b) The senior management of KDG and the senior management of KCG
have proposed a series of transactions (together, the "Transaction") designed to
separate KCG from PKS and KDG. The Transaction was presented to the PKS Board
at its meeting on July 23, 1997, and will be submitted to the PKS Board for
approval at a special meeting on August 14, 1997 (the "Special Board Meeting").
Subject to final approval of the Transaction by the PKS Board, PKS intends to
submit the Transaction to its shareholders (the "PKS Shareholders") for approval
at a special shareholders meeting during the fourth quarter of 1997 (the
"Special Shareholders Meeting"). The PKS Board will reserve the right to
abandon the Transaction at any time.
(c) KDG acknowledges that if (i) the Transaction is not approved by
the PKS Board at the Special Board Meeting, (ii) the Transaction is not approved
by the PKS Shareholders at the Special Shareholders Meeting, or (iii) the
Transaction is abandoned by the PKS Board for any reason, (each of the foregoing
an "Abandonment" of the Transaction), the Executive intends to terminate his
employment with KDG. If the Executive terminates his employment with KDG as a
result of the Abandonment of the Transaction, the Executive will, if requested
by PKS and KDG, resign as a member of the PKS Board and of the KDG Board.
(d) If the Executive is no longer employed by PKS (for any reason
whatsoever), the Executive will not have any non-compete, non-solicitation or
other similar obligations to or respecting PKS or KDG.
2. ACQUISITION OF BROADBAND. (a) KDG agrees to purchase, as of
September 16, 1997 (the "Broadband Closing Date"), all of the right, title and
interest of the Owners in Broadband (the "Ownership Interests") pursuant to an
Assignment of Ownership Interests in the form attached as Exhibit B to this
Agreement (the "Assignment"). Executive agrees to sell his Ownership Interests
in Broadband to KDG, and each of the other Owners has agreed, as of the date of
this Agreement, to sell his Ownership Interests in Broadband to KDG.
(b) The purchase price (the "Broadband Purchase Price") for all of
the Ownership Interests will be an amount equal to the aggregate amount of
capital contributions and loans provided by the Owners to Broadband, less any
distributions by Broadband to the Owners and any payments of principal by
Broadband with respect to any such loan, in each case as of the Broadband
Closing Date (the "Net Investment"). KDG will pay the Broadband Purchase Price
to the Owners by bank check on the Broadband Closing Date.
(c) Except as set forth in the Assignment, the Owners will make no
representation or warranty to KDG whatsoever with respect to Broadband or to the
Ownership Interests, and will have no liability or obligation to KDG whatsoever
with respect to Broadband or the Ownership
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Interests. From and after the Broadband Closing Date, KDG will indemnify the
Owners and hold the Owners harmless from any claim, liability or obligation with
respect to Broadband, except with respect to those matters as to which the
Owners agree to indemnify KDG pursuant to the Assignment.
3. SALE OF CLASS D STOCK. (a) Subject to the satisfaction of the
condition set forth in Section 3(c), PKS will sell to the Executive, and the
Executive will purchase from PKS, 1,000,000 shares (the "Executive Shares") of
its Class D Diversified Group Convertible Exchangeable Common Stock, par value
$.0625 per share ("Class D Stock").
(b) The purchase price for the Executive Shares will be $54.25 per
share, which is the Class D Per Share Price (as that term is defined in the
Certificate) as of the date of this Agreement. The Executive will pay the
purchase price for the Executive Shares in cash on a date, to be mutually agreed
upon by the Executive and the Company, which occurs within thirty calendar days
after the satisfaction of the condition set forth in Section 3(c) (the "Class D
Stock Closing Date").
(c) The obligation of PKS to sell, and of the Executive to purchase,
the Executive Shares is subject solely to the expiration or early termination of
the waiting period with respect to such sale and purchase under the ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as amended (the "HSR Act"). PKS and
the Executive will use their best efforts to file any notification and report
forms and other material required under the HSR Act as promptly as possible
after the date of this Agreement and to seek early termination of the waiting
period under the HSR Act. PKS will pay all filing fees and other costs and
expenses incurred in connection with compliance under the HSR Act.
(d) PKS will register the Executive Shares under the Securities Act
of 1933, as amended (the "1933 Act") before the Class D Stock Closing Date. PKS
will pay all registration fees and other costs and expenses in connection with
such registration. The Executive acknowledges, however, that his right to sell
or transfer the Executive Shares will be restricted under the 1933 Act for so
long as he is an affiliate of PKS within the meaning of the 1933 Act. The
Executive further acknowledges that the Executive will have no right to require
PKS, and that PKS will have no obligation, to register the Executive Shares
under the 1933 Act for resale by the Executive.
(e) PKS agrees to make available for sale, from time to time, (i)
250,000 shares of Class D Stock to R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who is being engaged as
chief financial officer of KDG, and (ii) up to 1,050,000 shares of Class D Stock
to other persons designated by the Executive as instrumental to the development
and implementation of the Expansion Plan, in each such case at the then
applicable Class D Per Share Price, and upon terms and conditions substantially
similar to those set forth in the PKS D Shares Agreement.
4. PKS D SHARES AGREEMENT. In connection with the sale of the Executive
Shares, PKS and the Executive will enter into a PKS D Shares Agreement. The
Executive acknowledges that any sale, transfer or other disposition of the
Executive Shares will be subject to the PKS D Shares Agreement.
5. EXPANSION PLAN ASSETS. (a) If the Transaction is Abandoned or KDG
terminates the employment of the Executive (with or without cause) before the
Transaction is consummated (either, a "Termination Event"), the Executive or a
designee of the Executive (either, the "Purchaser") will have the right to
elect, by delivery of a notice (a "Purchase Notice") within 60 days after the
date of the Termination Event, to purchase the Expansion Plan Assets, as defined
in Section 5(b), subject to the assumption by the Purchaser of any Expansion
Plan Liabilities, as defined in Section 5(b), and (ii) the
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Executive and/or the Purchaser will be entitled to pursue independently of PKS
and KDG any business plan or opportunity developed by the Executive, KDG or any
Expansion Plan Subsidiary in connection with the Expansion Plan.
(b) "Expansion Plan Assets" means (i) all capital stock of, or other
ownership interest in, any wholly-owned (corporate or limited liability company)
subsidiaries of KDG or PKSIS formed after the date of this Agreement to pursue
the Expansion Plan ("Expansion Plan Subsidiaries"), and (ii) any assets (whether
tangible or intangible, and including any contract rights, intellectual property
or other similar intangible asset created in furtherance of the Expansion Plan)
of KDG (determined on an unconsolidated basis, and excluding any capital stock
of, or other ownership interest in, any subsidiary) created or acquired after
the date of this Agreement in furtherance of the Expansion Plan, but in each
such case solely to the extent that such capital stock, ownership interest or
other asset was acquired or created as a result of an expenditure authorized by
the Board of Directors of KDG, either through delegation of authority to
officers of KDG, approval of general budgets with respect to the Expansion Plan
or through authorization of specific expenditures. Expansion Plan Assets,
however, does not include (i) any asset held, directly or indirectly, by KDG as
of the date of this Agreement, or any proceeds of the sale or other disposition
of any such asset, except to the extent such proceeds are invested in Expansion
Plan Assets; (ii) any capital stock of, other ownership interest in, (A) PKS
Information Services, Inc. ("PKSIS"), PKS Computer Services, Inc., PKS Systems
Integration, Inc. ("PKSSI") and the current subsidiaries of PKSSI, or (B) future
subsidiaries of PKSIS or PKSSI formed to pursue the computer services or systems
integration businesses as constituted on the date of this Agreement (together,
the "PKSIS Companies"); (iii) any capital stock of, or other ownership interest
in, any subsidiary of KDG other than the Expansion Plan Subsidiaries (together
with the PKSIS Companies, the "Other Subsidiaries"); (iv) any asset now held or
acquired after the date of this Agreement by any PKSIS Company or any Other
Subsidiary, or (v) any asset of KDG acquired after the date of this Agreement
other than in furtherance of the Expansion Plan. "Expansion Plan Liabilities"
means any liability (whether absolute or contingent, matured or unmatured,
accrued or unaccrued or known or unknown) incurred by KDG after the date of this
Agreement solely in furtherance of the Expansion Plan (determined on an
unconsolidated basis, and excluding any liability of any subsidiary of KDG).
(c) The purchase price (the "Expansion Plan Asset Purchase Price")
for the Expansion Plan Assets will be an amount equal to the sum of (i) the
shareholders' equity of each of the Expansion Plan Subsidiaries and (ii) KDG's
book value for any other Expansion Plan Assets, less KDG's book value, if any,
for any Expansion Plan Liabilities, in each case as of the Expansion Plan Asset
Closing Date. The Purchaser will pay all costs and expenses incurred by either
the Purchaser or KDG in connection with the purchase and sale of the Expansion
Plan Assets, including any fees payable under the HSR Act.
(d) The Purchaser and KDG will use their best efforts to agree,
within ten calendar days after the date of the Purchase Notice, upon the
consents, approvals or authorizations of any person or governmental authority
(in addition to expiration or early termination of the waiting period under the
HSR Act) that are necessary or appropriate for the purchase and sale of the
Expansion Plan Assets (the "Third Party Consents"). The Purchaser and KDG will
use their best efforts (i) to file any notification and report forms and other
material required under the HSR Act, and (ii) to obtain any other Third Party
Consents, in each case as promptly as practicable after the expiration of such
ten-day period. The closing date (the "Expansion Plan Asset Closing Date") for
any purchase of Expansion Plan Assets will be the last business day of any month
selected by the Purchaser after the expiration or early termination of the
waiting period under the HSR Act, notwithstanding that all Third Party Consents
might not have
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been obtained on that date. If all Third Party Consents have not been obtained
by the Expansion Plan Asset Closing Date, KDG will retain any Expansion Plan
Assets or Expansion Plan Liabilities that cannot be transferred or assumed by
reason of the failure to obtain such Third Party Consents for the benefit or for
the account of the Purchaser, and will take any such action as the Purchaser
reasonably requests in order to place the Purchaser, insofar as is reasonably
possible, in the same position as if the Expansion Plan Assets or Expansion Plan
Liabilities had been transferred or assumed as contemplated by this Agreement.
KDG and the Purchaser will continue to use their best efforts to obtain such
Third Party Consent, and will transfer such Expansion Plan Assets or assume such
Expansion Plan Liabilities as soon as such Third Party Consents are received.
(e) KDG will deliver to the Purchaser and to the Board of Directors
of KDG, at least ten calendar days before the Expansion Plan Asset Closing Date,
a calculation of the Expansion Plan Asset Purchase Price, based on a closing of
the books and records of KDG as of the end of the month ending immediately
before the Expansion Plan Asset Closing Date (the "Interim Expansion Plan Asset
Purchase Price"). On the Expansion Plan Asset Closing Date, (i) the Purchaser
will pay to KDG, in cash, an amount equal to Interim Expansion Plan Asset
Purchase Price, (ii) KDG will execute and deliver to the Purchaser such stock
certificates, stock powers and assignments as are reasonably requested by
Purchaser to transfer the Expansion Plan Assets from KDG to the Purchaser, and
(iii) the Purchaser will execute and deliver such documents as are reasonably
requested by KDG to assume the Expansion Plan Liabilities, if any.
(f) Within 60 calendar days after the Expansion Plan Closing Date,
Coopers & ▇▇▇▇▇▇▇ (the "Accountants") will prepare and deliver to the Purchaser
and KDG a preliminary audit report setting forth a calculation of the Expansion
Plan Asset Purchase Price. The Purchaser and KDG may review and comment on the
preliminary audit report within the 30 calendar day period after delivery of the
preliminary audit report. To the extent that Purchaser and KDG cannot agree
upon the amount of the Expansion Plan Asset Purchase Price within 15 calendar
days after the expiration of such 30 calendar day period, the Expansion Plan
Asset Purchase Price will be determined in final audit report delivered by a
national accounting firm mutually selected by KDG and Purchaser (if no such firm
is so selected, then such firm shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) within 90 days after
such period. KDG and Purchaser shall share the reasonable cost of any such
audit report. The Expansion Plan Asset Purchase Price so determined shall be
final and binding on the Purchaser and KDG. Within five calendar days after
such determination, the Purchaser or KDG, as the case may be, shall deliver to
KDG or the Purchaser, as the case may be, an amount equal to the difference, if
any, between the Interim Expansion Plan Purchase Price and the Expansion Plan
Asset Purchase Price, if any.
(g) Each Party will execute and deliver such additional documents and
agreements, and take such other action, as may be reasonably necessary to obtain
any Third Party Consent and to carry out the purchase and sale of the Expansion
Plan Assets.
6. NOTICES. (a) All notices required under this Agreement must be in
writing and must be (i) personally delivered to the recipient, (ii) mailed to
the recipient at its notice address by use of a nationally recognized express
delivery service, or (iii) mailed to the recipient at its notice address by use
of registered or certified mail, return receipt requested. All notices will be
deemed to have been delivered, given, sent or received, and will otherwise
become effective, on the date of actual delivery.
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(b) The notice addresses of the Parties are as follows:
The Executive:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a Copy to:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fraser, Stryker, Vaughn, Meusey, Olson, ▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
PKS and KDG:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President, PKS, with a copy to:
General Counsel, PKS;
President, KDG, with a copy to: General Counsel, KDG
A Party may change its Notice Address at any time by Notice to the
other Party.
7. MISCELLANEOUS. The rights and obligations set forth in this Agreement
may be amended, modified or supplemented only by a writing signed by each Party.
The invalidity or unenforceability of any provision of this Agreement will not
affect the validity or enforceability of any other provision of this Agreement.
A Party may waive a right under this Agreement only by a written waiver signed
by the Party, and no failure to exercise or delay in exercising a right under
this Agreement will constitute a waiver of that right. This Agreement will
inure to the benefit of the Parties, but not to any other Person, and (except as
provided in Section 5(a)) the rights and obligations of a Party under this
Agreement may not be assigned or delegated without the consent of the other
Parties. This Agreement, the Assignment and the PKS D Shares Agreement with the
Executive contains the entire agreement of the Parties regarding the matters
subject to this Agreement, and any earlier agreement regarding those matters,
including the letter agreement dated July 21, 1997 is superseded. This
Agreement will be governed by and construed and enforced in accordance with the
laws of the State of Nebraska other than those relating to conflicts of law or
choice of law. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the Parties have entered into this Agreement as of
August 1, 1997.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Sons', Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., President
Kiewit Diversified Group Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT A
PKSD SHARES AGREEMENT
▇▇▇▇▇ ▇▇▇▇▇▇ SONS', INC., a Delaware corporation ("PKS"), and ____________
("Employee") hereby agree as follows:
1. CERTAIN TERMS. The signatory parties to this Agreement hereby define the
following terms:
a. "PKS Certificate" is the Certificate of Incorporation of PKS, as
amended or restated from time-to-time.
b. "Class D Shares" are the shares of PKS Diversified Group Convertible
Exchangeable Common Stock, the issuance of which is authorized by the
PKS Certificate (and which is therein defined and reference as "Class
D Stock").
c. "KDG" is Kiewit Diversified Group Inc., a Delaware corporation; KDG is
a wholly owned subsidiary of PKS.
d. "Class D Per Share Price" is the Class D Per Share Price as defined
and so referenced in the PKS Certificate.
e. "PKS Board" is the board of directors of PKS.
f. "Proposed Transaction" is the proposed separation of PKS' construction
and diversified business interests referenced as the "Transaction" in
the definitive proxy statement and joint prospectus which PKS intends
to distribute to its shareholders in connection with such separation.
g. "Relevant Period" is the period which
i. COMMENCES on the date hereof, and which
ii. ENDS on the occurrence of the Proposed Transaction.
2. ENGAGEMENT. Employee has been recently engaged as an "at will"
employee of KDG, which engagement is herein called the "Engagement."
3. RELEVANT CLASS D SHARES. As an inducement to Employee to enter into
the Engagement and to enhance Employee's performance under the Engagement, PKS
has previously agreed to sell, and has contemporaneously herewith sold, to
Employee ____ Class D Shares ("Relevant Class D Shares") at $54.25 per share,
which price is the Class D Per Share Price as of the date of such sale, and
which such sale has been effected subject to the provisions of, and in reliance
upon the execution of, this Agreement. This Agreement is being executed and
delivered by Employee and PKS as a condition of, and in consideration for, the
consummation of such sale.
4. RESTRICTIONS ON TRANSFER. Employee hereby acknowledges and agrees to
and with PKS that, during the Relevant Period, Employee will not sell, transfer,
assign or otherwise change the ownership of the Relevant Class D Shares,
excepting only as follows:
a. Employee may transfer Relevant Class D Shares to the trustee of any
trust which benefits only, or to family limited partnerships all of
the partners in which are only, Employee or Employee's spouse or
lineal descendants, such trustee or partnership remaining subject to
the provisions of this Agreement; and
b. Employee may pledge or encumber (such as be granting a security
interest in) Relevant Class D Shares to a bank or other financial
institution ("Pledgee Bank") as collateral for, or security for
repayment of, promissory notes executed, or other obligations
undertaken, by Employee to such Pledgee Bank (collectively "Relevant
Loans"); however, such Pledgee Bank shall have the right, free of all
restrictions hereunder, to sell, transfer, assign or otherwise change
the ownership of such Relevant Class D Shares (so pledged or
encumbered) in the course of selling or liquidating collateral for the
purpose of paying (or performing) such Relevant Loans, and the
transferees of such Pledgee Bank shall acquire such Relevant Class D
Shares free of all restrictions hereunder.
5. PKS CALL RIGHT. Employee hereby acknowledges and agrees to and with
PKS that PKS shall have the right to purchase the Relevant Class D Shares at the
then current Class D Per Share Price thereof, upon, and for a period of 60 days
following the occurrence of, any among the following (provided that the Put
Right, as hereinafter defined, has not been exercised):
a. the Proposed Transaction is definitively abandoned by formal action of
the PKS Board; or
b. Employee voluntarily terminates the Engagement.
PKS' right provided for in the preceding sentence is herein called the "PKS Call
Right." The PKS Call Right may be exercised only by PKS' delivery to Employee
of a written notice thereof (which refers specifically to this subparagraph)
within 60 days following such occurrence, whereupon such purchase shall be
consummated within 10 days thereafter by PKS' payment to Employee of the total
purchase price therefor in current funds, and Employee's delivery to PKS of the
stock certificates which represent the Relevant Class D Shares, duly endorsed
and free of all liens and encumbrances. Notwithstanding a pledge or encumbrance
of the Relevant Class D Shares or the sale by a Pledgee Bank of the Relevant
Class D Shares upon foreclosure, Employee shall remain liable for performance of
his obligation to deliver Relevant Class D Shares if and when PKS exercises the
PKS Call Right; in other words, if the PKS Call Right is exercised (including
respecting pledged or encumbered Relevant Class D Shares), Employee must
pursuant thereto tender to PKS the called Relevant Class D Shares, whereupon PKS
may pursue any and all remedies available to PKS if employee fails to comply
with such obligation, which remedies include specific performance of such
obligation or damages incurred by PKS.
6. PUT RIGHT. The PKS Certificate provides (in Article Sixth, Paragraph
(L)) that holders of Class D Shares have the right to require PKS to purchase
such shares at the then
current Class D Per Share Price thereof; such right is herein called the "Put
Right." Except as provided for in the next sentence, Employee hereby waives the
right to exercise the Put Right during the Relevant Period. However,
notwithstanding the preceding sentence, a Pledgee Bank, and any transferee or
assignee of, or any buyer from, a Pledgee Bank shall have and maintain at all
times the right to exercise the Put Right at any time free of all restrictions
hereunder, which Put Right shall not be deemed to have been waived by Employee
in the prior sentence; the provisions of this sentence shall be interpreted
liberally so as to favor and enhance the rights of a Pledgee Bank to fully deal
with and exercise all of its rights as a pledgee or secured party respecting
pledged Relevant Class D Shares; similarly, a transferee of a Pledgee Bank shall
also have the unrestricted right to exercise the Put Right at anytime.
7. OTHER PROVISIONS.
a. This Agreement constitutes the entire agreement, and supersedes all
other prior written or oral agreements and understandings, between PKS
and Employee respecting the Relevant Class D Shares.
b. This Agreement is not intended to confer any benefits or rights to any
person or entity who or which is not a signatory party hereto,
excepting only all Pledgee Banks and transferees of Pledgee Banks, all
other permitted (by the specific terms of this Agreement) transferees
or assignees of Employee, and all subsidiaries or corporate successors
of PKS, all of whom being intended third-party beneficiaries
hereunder.
c. This Agreement shall bind and benefit the permitted assigns,
transferees and successors of the signatory parties hereto.
d. This Agreement has been executed and delivered by the signatory
parties hereto in, and shall be governed in all respects (including as
to validity, interpretation and legal effect) by the laws of, the
State of Nebraska.
e. Any attempted transfer by Employee of Relevant Class D Shares which is
not in compliance with the provisions of this Agreement shall be
deemed void AB INITIO and shall, if so elected by PKS, constitute a
material default in Employee's observance and performance of this
Agreement.
f. All notices shall be deemed delivered on the next business day
following actual delivery thereof, or on the second business day
following deposit for delivery with an express overnight delivery
service (such as Federal Express) thereof, to a signatory party hereto
at the address of such party set forth below.
g. This Agreement shall be dated for reference purposes September 30,
1997.
▇▇▇▇▇ ▇▇▇▇▇▇ SONS', INC.:
By:
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: President
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EMPLOYEE:
------------------------------------
Address:
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EXHIBIT B
ASSIGNMENT OF OWNERSHIP INTERESTS
Ten X LLC, R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (together, the
"Owners") hereby assign all of their right, title and interest in and to
Broadband Capital, L.L.C., a Nebraska limited liability company ("Broadband"),
to Kiewit Diversified Group Inc. ("KDG"), in exchange for a cash payment of
$30,000 (the "Purchase").
The Owners hereby represent to KDG that the Owners are the record and
beneficial owners of the Ownership Interest, free and clear of any and all
claims, liens, pledges, security interests or other encumbrances, that the
Ownership Interests represent the entire Ownership Interest in Broadband, and
that this Assignment will vest in KDG full and complete title to the Ownership
Interest free and clear from any such encumbrance. The Owners further represent
that the Purchase Price is equal to the Net Investment as of the date of this
Assignment. The Owners will indemnify KDG and hold KDG harmless from any and
all claim or liability arising out of the inaccuracy of the foregoing
representations.
Terms used but not defined in this Assignment have the meanings ascribed to
them in the Executive Engagement Agreement dated as of August 1, 1997 by and
among ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ Diversified Group Inc. and ▇▇▇▇▇ ▇▇▇▇▇▇ Sons', Inc.
IN WITNESS WHEREOF, the Owners have executed this Assignment of Ownership
Interest as of September 1, 1997.
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Ten X LLC ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
