EXHIBIT 4.5
AGREEMENT
WITH RESPECT TO
CONVERTIBLE DEBENTURES
OF
XXXXX XXXXXX SONS', INC.
THIS AGREEMENT, made and entered into this ----
day of -------------, 19----, by and between ---------
-------------, hereinafter referred to as the
Debentureholder, and XXXXX XXXXXX SONS', INC., a
Delaware corporation, hereinafter referred to as the
Corporation;
WITNESSETH:
WHEREAS, it has been and is the policy of the
Corporation, as being in its best interest, to
restrict the issuance and holding of its corporate
convertible debentures, hereinafter referred to as
debentures; and
WHEREAS, the Debentureholder, being
presently qualified to hold debentures, desires to be
issued debentures of the Corporation to be held
subject to the conditions and restrictions required to
effect the aforesaid policy as set forth hereinafter;
NOW THEREFORE, in consideration of the
issuance of debentures of the Corporation to
Debentureholder and for other good and valuable
consideration, the receipt whereof is acknowledged by
each of the parties hereto, it is agreed by and
between the parties as follows:
(1) Debentures Subject to Agreement.
Unless otherwise specifically set forth in a separate
written agreement between the Corporation and the
Debentureholder, this Agreement shall apply to all
debentures issued to the Debentureholder on or before
the date of this Agreement and any additional
debentures which are issued to the Debentureholder
after the date of this Agreement. This Agreement
supersedes any previous agreement between the
Corporation and the Debentureholder relating to such
debentures and the sale or repurchase of such
debentures by the Corporation.
(2) Corporation's Purchase of Debentures
Upon Debentureholder's Proposed Disposition of
Debentures. Except for pledges of debentures as
collateral for loans in connection with the ownership
of the Corporation's debentures, Debentureholder shall
not give, sell, assign, pledge, encumber, hypothecate,
transfer or otherwise dispose of any debentures
subject to this Agreement, without first offering in
writing to sell the debentures to the Corporation.
The offer to sell the debentures to the Corporation by
the Debentureholder shall be accepted by the
Corporation and a notice of acceptance shall be given
to the Debentureholder within 30 days following
receipt of the offer from Debentureholder.
(3) Corporation's Purchase of Debentures
Upon Debentureholder's Death or Termination of
Employment. The Debentureholder agrees that upon
termination of Debentureholder's employment for any
reason, including death, that Debentureholder,
Debentureholder's representative, or Debentureholder's
estate shall sell all debentures owned by
Debentureholder, and the Corporation shall purchase
all of said debentures in accordance with the terms of
this Agreement. Notice of the Corporation's intent to
purchase such debentures shall be given in the event
of death of Debentureholder, within 180 days from the
date of death, and in the event of ceasing to be in
the employ of Corporation, within 90 days from the
date employment ceases. Employment is herewith
defined to mean employment by the Corporation, one of
its subsidiaries, a joint venture in which the
Corporation and/or its subsidiaries have a 20 percent
or more interest, Kiewit Coal Properties, Inc. or any
subsidiary thereof or any joint venture in which
Kiewit Coal Properties, Inc. or any such subsidiary
has a 20 percent or more interest. "Subsidiaries" of
the Corporation are any corporation in which this
Corporation owns directly or indirectly at least 20
percent of the outstanding capital stock, based on the
total dollar value of outstanding stock if there is
more than one class of stock outstanding.
"Subsidiaries" of Kiewit Coal Properties, Inc. are
any corporation in which Kiewit Coal Properties, Inc.
owns directly or indirectly at least a majority of the
outstanding capital stock, based on the total dollar
value of outstanding stock if there is more than one
class of stock outstanding.
(4) Purchase Price and Payment for
Debentures. The purchase price shall be at a price
equal to the principal amount of the debentures plus
accrued and unpaid interest to the date of purchase.
The purchase price shall be paid to the
Debentureholder, or such other person as may be
legally entitled thereto, within 60 days after the
date of mailing of notice by the Corporation as
provided in paragraphs (2) and (3); provided, that the
Corporation received the Certificate or Certificates
evidencing the debentures subject to purchase by the
Corporation, endorsed in blank or accompanied by
appropriate transfer powers executed in blank, and
accompanied by such other evidence of authority as may
reasonably be required. In the event of failure to
deliver to the Corporation the Certificate or
Certificates for the debentures subject to purchase
with required evidence of authority within 30 days
after the date of mailing the notice by the
Corporation as provided in paragraphs (2) and (3), the
Secretary shall be authorized to cancel such
Certificates on the books of the Corporation and such
debentures shall be deemed to be no longer
outstanding. The holder of such debentures shall
thereafter have no further interest as a
Debentureholder of the Corporation with respect to
such debentures except to receive the purchase price
therefor. It is further understood and agreed that
the Corporation shall be authorized to deduct from the
purchase price any amount due it or others from the
Debentureholder pertaining to the Corporation's
debentures.
(5) Debentures to be Acquired by
Corporation from Debentureholder. It is agreed by the
parties that in the event any debenture of the
Corporation is tendered by the Debentureholder to the
Corporation, the Corporation shall purchase all of the
tendered debentures, and in addition thereto, may, at
its option, purchase all or any part of other
debentures of the Corporation then owned by the
Debentureholder.
(6) Notices. Any notices required or
permitted to be given under this Agreement shall be in
writing and shall be sufficient if delivered in person
or sent by certified mail, return receipt requested.
The notice to the Debentureholder or the
Debentureholder's personal representatives, if mailed,
shall be sent to the Debentureholder's last known
address. The notice to the Corporation shall be
delivered or mailed to the Secretary, Xxxxx Xxxxxx
Son's, Inc., Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.
(7) Governing Law. This Agreement shall be
governed in all respects by the laws of the State of
Nebraska.
(8) Binding Effect. This Agreement shall
inure to the benefit of and be binding upon the heirs,
personal representatives and assigns of
Debentureholder and upon the successors and assigns of
the Corporation.
IN WITNESS WHEREOF, the parties have executed
this Agreement on the date first above written.
WITNESS:
---------------- ------------------------
Debentureholder
ATTEST: XXXXX XXXXXX SONS', INC.
Corporation
---------------- By ---------------------
Assistant Secretary President
