FORM OF
EXECUTIVE EMPLOYMENT AGREEMENT
BY AND BETWEEN
KIEWIT MATERIALS COMPANY
AND
[NAME OF EXECUTIVE]
APRIL 19, 2002
TABLE OF CONTENTS
1. Employment...............................................................................................1
2. Extent of Employment.....................................................................................1
3. Compensation.............................................................................................1
4. Term of Employment.......................................................................................1
5. Termination..............................................................................................2
6. Reimbursement of Expenses................................................................................5
7. Benefits.................................................................................................5
8. Confidential Information.................................................................................5
9. Defense of Claims........................................................................................6
10. Non-Disparagement........................................................................................6
11. Certain Other Definitions................................................................................6
12. Change in Control........................................................................................9
13. Notice..................................................................................................10
14. Severability............................................................................................10
15. Breach; Waiver of Breach; Specific Performance..........................................................10
16. Assignment; Third Parties...............................................................................11
17. Amendment; Entire Agreement.............................................................................11
18. Choice of Law; Litigation...............................................................................11
19. Further Action..........................................................................................12
20. Intention of the Parties................................................................................12
21. Payment Obligations Absolute............................................................................12
22. Mutual Releases.........................................................................................12
23. Reference Date..........................................................................................13
LIST OF DEFINITIONS
Additional Gross-Up Payment.......................................................................................3
Additional Payments...............................................................................................3
Annual Bonus......................................................................................................1
Appraised Value..................................................................................................14
Auditor...........................................................................................................4
base amount.......................................................................................................4
Base Salary.......................................................................................................1
Board of Directors................................................................................................1
Buyer.............................................................................................................6
Cause.............................................................................................................6
Change in Control.................................................................................................7
Company...........................................................................................................1
Confidential Information..........................................................................................7
Constructive Termination..........................................................................................7
Control Change Date...............................................................................................9
Death.............................................................................................................2
Determination.....................................................................................................3
Disability........................................................................................................2
excess parachute payments.........................................................................................4
Excise Tax........................................................................................................3
Executive.........................................................................................................1
Gross-Up Payment..................................................................................................3
Indemnification Agreement.........................................................................................4
knowing...........................................................................................................8
knowledge.........................................................................................................8
No Reason.........................................................................................................2
parachute payments................................................................................................4
Relevant Trigger Period...........................................................................................8
Remaining Trigger Period..........................................................................................8
Resignation.......................................................................................................2
Scheduled Term End Date...........................................................................................8
Security..........................................................................................................3
Tax Counsel.......................................................................................................4
Term of Employment................................................................................................1
Termination Date..................................................................................................1
Termination Payment...............................................................................................8
Total Payments....................................................................................................3
Trigger Period....................................................................................................8
FORM OF EXECUTIVE EMPLOYMENT AGREEMENT
[NAME OF EXECUTIVE] ("Executive"), and KIEWIT MATERIALS COMPANY, a
Delaware corporation ("Company"), hereby agree as follows:
1. EMPLOYMENT. Executive is now, and has for some time served
as, an executive employee of Company. Company hereby agrees to continue the
employment of [POSITION OF EXECUTIVE] of Company, and Executive hereby agrees
to so continue such employment, during the Term of Employment, all pursuant to
this Agreement. The principal place of such employment shall be in Omaha,
Nebraska, Executive's current home city of residence. The scope and duties of
Executive in such employment shall be those as have last characterized his
employment through the date hereof.
2. EXTENT OF EMPLOYMENT. Executive shall perform his duties and
obligations hereunder faithfully, and to the best of his ability, under the
lawful direction of the Board of Directors of Company (the "Board of
Directors") and the President of Company. Executive shall devote all of his
business time, energy and skill such as may be reasonably necessary for the
performance of his duties and obligations hereunder, consistent with the past
practices and norms of Company and shall abide by the reasonable rules, customs
and usages from time to time established by Company.
3. COMPENSATION. In consideration of services provided
hereunder, Company shall compensate Executive during the Term of Employment as
follows:
(a) Company shall pay to Executive, as base compensation during
the Term of Employment, in substantially equal weekly installments, an annual
base salary of $[AMOUNT] (the "Base Salary"). The Board of Directors shall
annually review and may increase or reduce the same in its sole discretion,
except that during the Trigger Period, the Board of Directors may not reduce
the Base Salary below $[AMOUNT].
(b) Company shall pay to Executive an annual bonus compensation
("Annual Bonus"), which is to be based on Executive's performance during and
respecting each calendar year during the Term of Employment. The payment and
amount of each year's Annual Bonus shall be at the sole discretion of the Board
of Directors, except that during and respecting the Trigger Period, the Board
of Directors must pay an Annual Bonus of no less than $[AMOUNT]. Such Annual
Bonus shall be paid concurrently with other annual bonuses paid by Company to
other executives, unless earlier required by other provisions of this
Agreement.
4. TERM OF EMPLOYMENT. The "Term of Employment" shall commence
on the date hereof and shall end on the Scheduled Term End Date or as otherwise
provided in Section 5. The last day of the Term of Employment is herein called
the "Termination Date."
5. TERMINATION.
(a) Subject to Company's obligations to make the payments
contemplated by the following provisions of this Section 5, the Term of
Employment may be terminated at any time prior to the Scheduled Term End Date:
(i) upon the death of Executive ("Death"); or
(ii) upon the Board of Directors reasonable
determination, after consultation with a competent medical physician,
because of physical or mental disability, Executive is unable to
perform, and does not perform, his material duties hereunder for 120
days in any continuous 240-day period ("Disability"); or
(iii) by Company for Cause; or
(iv) by Company for any other reason ("No Reason"), or by
Company for no reason (also "No Reason"), or by Company by
Constructive Termination (also "No Reason"); or
(v) by Executive voluntarily and for no reason after 30
days' prior written notice to Company and the Board of Directors
("Resignation").
Executive acknowledges that nothing contained herein, or otherwise stated by or
on behalf of Company, modifies or amends the right of Company to terminate
Executive at any time, with or without Cause.
(b) Upon termination of the Term of Employment on account of
Death, Disability, No Reason, Cause or Resignation, then:
(i) within ten days following the Termination Date,
Company shall pay to Executive (1) all accrued and unpaid Base Salary
and benefits (including vacation pay and benefits under Section 7 with
respect to the period of the Term of Employment prior to termination,
(2) reimbursement for all expenses under Section 6 with respect to
such period, (3) any other benefits (including COBRA) required by law
to be provided after termination of employment under the circumstances
and (4) customary severance pay, if any, as established by Company
pursuant to then current practice; and
(ii) all unvested equity interests (such as stock
options) in or respecting Company, if there are any, shall vest as of
such Termination Date; and
(iii) all 401(k) benefits and accounts shall vest as of
such Termination Date.
(c) In addition to the salary, benefits and reimbursements set
forth in subsection 5(b), and in lieu of severance pay provided for in clause
(4) thereof, in the event that Executive's employment is terminated during the
Trigger Period on account of Death, Disability or No Reason, then:
(i) during the Remaining Trigger Period, Company shall
also (1) maintain and provide at its sole expense, or reimburse
Executive for 100% of the premiums necessary to procure and maintain,
COBRA continuation coverage under, or equivalent coverage to that
provided under, the Company's then current group health insurance
plan, all benefiting Executive and any of his dependents who are
eligible therefor, and all as referenced in Section 4980B of the
Internal Revenue Code, and (2) provide to Executive reasonable (in
relation to Executive's circumstances and position) professional
outplacement services, excepting that the same shall only be so
provided during the first nine months of such period, but all of the
foregoing shall be so maintained and provided only to the extent not
otherwise to be maintained or provided under the provisions of
subsection 5(b) above; and
(ii) within ten days after the commencement of the
Remaining Trigger Period, Company shall also pay to Executive the
Termination Payment in a lump sum.
(d) (i) Whether or not the Executive becomes entitled to the
Termination Payment, if any of the payments or benefits received or to be
received by the Executive in connection with a Change in Control or the
Executive's termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, any
person whose actions result in a Change in Control or any person affiliated
with the Company or such person (but not including any payments described in
Section 5(d)(ii)) (all such payments and benefits, excluding the Gross-Up
Payment (as defined herein), being hereinafter referred to as the "Total
Payments") will be subject to any excise tax imposed under section 4999 of the
Internal Revenue Code (the "Excise Tax"), the Company shall pay to the
Executive an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Executive, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income and employment taxes and
Excise Tax upon the Gross-Up Payment, and after taking into account the phase
out of itemized deductions and personal exemptions attributable to the Gross-Up
Payment, shall be equal to the Total Payments.
(ii) If any payments or benefits received by the
Executive in connection with any Security (as defined herein) owned by the
Executive (other than interest payable thereon) ("Additional Payments") are,
pursuant to a determination within the meaning of Section 1313 of the Code (a
"Determination"), treated as giving rise to ordinary income treatment to the
Executive for federal, state or local income tax purposes, the Company shall
pay to the Executive an additional amount (the "Additional Gross-Up Payment")
such that the amount retained by the Executive, after deduction of any Excise
Tax on the Additional Gross-Up Payment and any federal, state and local income
and employment taxes and Excise Tax upon the Additional Gross-Up Payment, and
after taking into account the phase out of itemized deductions and personal
exemptions attributable to the Additional Gross-Up Payment, shall be equal to
the excess of (x) the Additional Payment over (y) the amount of federal, state
and local income tax that would have been payable by the Executive had the
Additional Payment been treated as gain arising from the sale or exchange of a
capital asset (which, for purposes of this Section 5(d)(ii), shall be treated
as long-term or short-term capital gain based on a holding period beginning on
the date of original acquisition of the Security by the Executive). For
purposes of this Section 5(d), the term "Security" shall mean any one or all of
the convertible debentures of the Company issued as Series 2000A, 2000B, 2000C,
2000D and 2001. The Company shall pay any
Additional Gross-Up Payment owed to the Executive within five (5) business days
after a Determination. However, such Additional Gross-Up Payment shall be
reduced by the amount of any payment actually received (no matter when) by
Executive specifically respecting such Determination under the certain
Indemnification Agreement executed by and between Executive and Company of even
date herewith (the "Indemnification Agreement"), the provisions and benefits
(to Executive) of which Indemnification Agreement being supplemental to and
augmenting the provisions and benefits (to Executive) of this Agreement.
(iii) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(A) all of the Total Payments shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Internal Revenue Code) unless, in the
opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive
and selected by the accounting firm which was, immediately prior to the Change
in Control, the Company's independent auditor (the "Auditor"), such payments or
benefits (in whole or in part) do not constitute parachute payments, including
by reason of section 280G(b)(4)(A) of the Internal Revenue Code, (B) all
"excess parachute payments" within the meaning of section 280G(b)(l) of the
Internal Revenue Code shall be treated as subject to the Excise Tax unless, in
the opinion of Tax Counsel, such excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered (within
the meaning of section 280G(b)(4)(B) of the Internal Revenue Code) in excess of
the "base amount" (within the meaning of section 280G(b)(3) of the Internal
Revenue Code) allocable to such reasonable compensation, or are otherwise not
subject to the Excise Tax, and (C) the value of any noncash benefits or any
deferred payment or benefit shall be determined by the Auditor in accordance
with the principles of sections 280G(d)(3) and (4) of the Internal Revenue
Code. For purposes of determining the amount of the Gross-Up Payment and
Additional Gross-Up Payment, the Executive shall be deemed to pay federal
income tax at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment or Additional Gross-Up Payment, as
the case may be, is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of the Executive's
residence on the Date of Termination (or if there is no Date of Termination,
then the date on which the Gross-Up Payment or Additional Gross-Up Payment is
calculated for purposes of this Section 5(d)), net of the maximum reduction in
federal income taxes which could be obtained from deduction of such state and
local taxes.
(iv) In the event that the Excise Tax is finally
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, the Executive shall repay to the Company,
within five (5) business days following the time that the amount of such
reduction in the Excise Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by the
Executive), to the extent that such repayment results in a reduction in the
Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income
and wages for purposes of federal, state and local income and employment taxes,
plus interest on the amount of such repayment at 120% of the rate provided in
section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
determined to exceed the amount taken into account hereunder in calculating the
Gross-Up Payment (including by reason of any payment the existence or amount
of which cannot be determined at the time of the Gross-Up Payment), the Company
shall make a further Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to such
excess) within five (5) business days following the time that the amount of
such excess is finally determined. The Executive and the Company shall each
reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Total Payments.
(v) The Gross-Up Payment shall be made not later than
the fifth day following the Termination Date (or if there is no Termination
Date, then the date on which the Gross-Up Payment is calculated for purposes of
this Section 5(d); provided, however, that if the amounts of such payment
cannot be finally determined on or before such date, the Company shall pay to
the Executive on such date an estimate, determined under this Section 5(d), of
the minimum amount of such payment to which the Executive is clearly entitled
and shall pay the remainder of such payment (together with interest on the
unpaid remainder (or on all of such payment to the extent the Company fails to
make such payment when due) at 120% of the rate provided in section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but
in no event later than the thirtieth (30th) day after the Termination Date. In
the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan
by the Company to the Executive, payable on the fifth (5th) business day after
demand by the Company (together with interest at 120% of the rate provided in
section 1274(b)(2)(B) of the Code). At the time the Gross Up Payment is made,
the Company shall provide the Executive with a written statement setting forth
the manner in which such payment was calculated and the basis for such
calculations including, without limitation, any opinions or other advice the
Company has received from Tax Counsel, the Auditor or other advisors or
consultants (and any such opinions or advice which are in writing shall be
attached to the statement).
6. REIMBURSEMENT OF EXPENSES. During the Term of Employment,
Company shall reimburse Executive for reasonably documented travel,
entertainment and other expenses reasonably incurred by Executive in connection
with the performance of his duties hereunder and, in each case, in accordance
with the rules, customs and usages promulgated by Company from time to time in
effect.
7. BENEFITS. Executive shall be entitled to participate in and
be covered by any insurance plan (including but not limited to life, medical,
dental, health, accident, hospitalization and disability), 401(k) plan, pension
plan or equity participation plan, all as then in effect for and benefiting any
executive employees of Company. Executive shall also be entitled to paid
vacation in each twelve-month period in accordance with the current vacation
policy of Company, subject to the reasonable requirements of Company as to the
timing of the taking of such vacation.
8. CONFIDENTIAL INFORMATION. During and after the Term of
Employment, Executive will not, directly or indirectly, in one or in a series
of transactions, disclose to any person, or use or otherwise exploit for
Executive's own benefit or for the benefit of anyone other than Company, any
Confidential Information, whether prepared by Executive or not. However, any
Confidential Information may be disclosed (1) to officers, representatives,
employees and agents
of Company who need to know such Confidential Information in order to perform
the services or conduct the operations required or expected of them in the
business, (2) in good faith by Executive in connection with the performance of
his duties hereunder or (3) after prompt notice to Company, as may be required
by law.
9. DEFENSE OF CLAIMS. Executive agrees that, from the date
hereof, and continuing for a reasonable period after termination of the Term of
Employment, Executive will reasonably cooperate with Company in defense of any
claims that may be made against Company provided such defense does not
interfere with Executive's then current employment. Company agrees to reimburse
Executive for all of Executive's reasonable out-of-pocket expenses associated
with such cooperation, including travel expenses and the fees and expenses of
Executive's legal counsel.
10. NON-DISPARAGEMENT. During and after the Term of Employment,
Executive agrees that he shall not make any false, defamatory or disparaging
statements about Company, its business, or the officers or directors of
Company, and Company agrees that neither the officers nor the directors of
Company shall make any false, defamatory or disparaging statements about
Executive.
11. CERTAIN OTHER DEFINITIONS.
(a) "Buyer" means the acquirer of control in a Change in Control
transaction,
(b) "Cause" means any of the following:
(i) Executive's conviction of, or plea of guilty or nolo
contendere to, a serious felony or a crime involving embezzlement,
conversion of property or moral turpitude;
(ii) Executive's commission of fraud, embezzlement or
conversion of property, as reasonably determined by the Board of
Directors based upon credible evidence;
(iii) a reasonable and good faith finding by the Board of
Directors of Executive's knowing breach of any of his fiduciary duties
to Company or making of a misrepresentation or omission which breach,
misrepresentation or omission would reasonably be expected to
materially adversely affect the business, properties, assets,
condition (financial or other) or prospects of Company, provided that
Executive has been given written notice thereof and within 30 days
after such notice fails to cure the breach, misrepresentation or
omission;
(iv) Executive's willful and continual neglect or failure
(other than by reason of Death or Disability) to discharge his
material duties, responsibilities or obligations prescribed by this
Agreement or any other agreement between Executive and Company,
provided that Executive has been given written notice thereof and
within 30 days after such notice fails to cure the neglect or failure;
(v) Executive's alcohol or substance abuse, which
materially interferes with Executive's ability to discharge his
duties, responsibilities and obligations prescribed by
this Agreement, provided that Executive has been given notice and 30
days from such notice fails to cure such abuse;
(vi) Executive's material violation, with the actual
knowledge of Executive, of any obligations under this Agreement to
Company, including without limitation, those set forth in Sections 8
through 10 of this Agreement, provided that Executive has been given
written notice thereof and within 30 days after such notice fails to
cure such material violation; or
(vii) Executive's personal (as opposed to Company's)
material and knowing failure to observe or comply with all material
and relevant laws and regulations, whether as an officer, stockholder
or otherwise, such that the same would reasonably be expected to have
a material adverse effect on Company's ongoing business, operations,
conditions, other business relationships or properties, provided, that
Executive has been given written notice thereof and within 30 days
after such notice fails to cure such failure.
(c) "Change in Control" means the consummation of a transaction
or series of transactions whereby there is a change "in the ownership or
effective control" of Company, or a change "in the ownership of a substantial
portion of the assets" of Company, as those terms are used in Section
280G(b)(2)(A) of the Internal Revenue Code, which consummation occurs (no
matter when) substantially in accordance with and pursuant to a definitive
agreement executed prior to April 19, 2003.
(d) "Confidential Information" means any confidential information
including, without limitation, any study, data, calculations, software storage
media or other compilation of information, patent, patent application,
copyright, "know-how", trade secrets, customer lists, details of client or
consultant contracts, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition plans
or any portion or phase of any scientific or technical information, ideas,
discoveries, designs, inventions, creative works, computer programs (including
source or object codes), processes, procedures, formulae, improvements or other
proprietary or intellectual property of Company, whether or not in written or
tangible form, and whether or not registered, and including all files, records,
manuals, books, catalogues, memoranda, notes, summaries, plans, reports,
records, documents and other evidence thereof. Notwithstanding the foregoing,
the term "Confidential Information" does not include, and there shall be no
obligation hereunder with respect to, information that is or becomes generally
available to the public other than as a result of a disclosure by Executive not
permissible hereunder.
(e) "Constructive Termination" means such ongoing intentional or
negligent actions or inactions by, or permitted by, Company (including (1)
coercion, (2) physical or mental abuse, (3) material adverse change from now
current circumstances in the scope, nature, authority or duties of Executive's
employment, the level of support staff and secretarial services, or other
accouterments or relevant entitlements thereto, (4) relocation from Omaha,
Nebraska, (5) excessive (in relation to now current practice) required business
travel, (6) failure to provide to Executive compensation, authority, duties,
support accouterments or benefits (including equity participation programs)
which are comparable to those now provided to Executive or to those then
provided to comparable executive employees of Company, whichever shall be the
most
beneficial to Executive, (7) other acts which could be deemed under common law
to be "constructive termination" of Executive's employment, or (8) default by
Company in performance of its obligations under this Agreement), such that
Executive reasonably and in good faith determines that he has reasonable cause
to, and he consequently does in fact, submit his resignation hereunder,
provided that Company has been given, prior to such resignation, written notice
thereof and within 30 days after such notice fails to cease and cure such
actions or inactions; however, no such notice shall be so required in the event
that one notice (relating to the same or different actions or inactions) has
been theretofore so given. Executive and Company acknowledge and agree that, in
the event of the occurrence of a Change in Control, the provisions of the
preceding sentence shall be liberally construed in favor of, and so as to
benefit to the maximum extent, Executive. A resignation by Executive pursuant
to the provisions of this subsection 11(e) shall not be deemed to be a
Resignation as defined in subsection 5(a)(v) above, but instead the same shall
be deemed to be a termination by Company by Constructive Termination and thus
to be a termination by Company for No Reason under subsection 5(a)(iv) above.
Notwithstanding the provisions of phrase 11e(4) above, a Constructive
Termination shall not be deemed to have occurred if, subsequent to a Change in
Control, Executive is both (1) required by Company to relocate to any city
within the continental United States, and (2) Company reimburses Executive for
all reasonable moving expenses and for the amount by which the Appraised Value
(as hereinafter defined) of Executive's Omaha, Nebraska residence exceeds (if
it does) the net sale proceeds received by Executive from the sale thereof
("Appraised Value" means the average of the appraised values of Executive's
said residence as of the date of such Change in Control determined by three
licensed appraisers, one being selected by Executive, one being selected by
Company and the third being selected by the first two appraisers, the cost of
which shall be borne by Company).
(f) "knowing" and "knowledge" means actual knowledge without any
duty of investigation.
(g) "Remaining Trigger Period" means that period during the
Trigger Period which (1) commences on the last to occur as between the
Termination Date and the Control Change Date, and (2) ends on the last day of
the Trigger Period.
(h) "Relevant Trigger Period" is that period during the Trigger
Period which (1) commences on the Termination Date and (2) ends on the last day
of the Trigger Period.
(i) "Scheduled Term End Date" means the date when Executive ceases
to be an employee of Company on account of Death, Disability, Cause, No Reason
or Resignation; however, if a Change in Control occurs, then the "Scheduled Term
End Date" means the [second/third] anniversary of the Control Change Date.
(j) "Termination Payment" means that dollar amount which is equal
to the sum of
(i) the product obtained when 1/365th of Executive's
Base Salary in effect on the Termination Date is multiplied by the
number of days in the Relevant Trigger Period, plus
(ii) the sum of the minimum Annual Bonuses which would
have been due to Executive during or respecting the Relevant Trigger
Period.
Such Termination Payment shall not be reduced by any present value or similar
factor; Executive shall not be required to mitigate the amount of such
Termination Payment by securing other employment or otherwise; and such
Termination Payment shall not be reduced by reason of Executive's having
secured other employment or for any other reason.
(k) "Trigger Period" means that period which (1) commences on
April 19, 2002, and (2) ends on the [second/third] anniversary of the Control
Change Date. Without limiting the generality of the foregoing, if no Change in
Control occurs then no Trigger Period occurs.
12. CHANGE IN CONTROL. In the event of the occurrence of a Change
in Control:
(a) Company shall cause Buyer to thereafter continue the
employment of Executive under this Agreement and to otherwise assume and
perform all of Company's obligations under this Agreement in the place and
stead of Company; in other words, subsequent to a Change in Control, and as a
result thereof, Executive shall continue to be employed by Buyer under the
terms of this Agreement.
(b) Company shall cause Buyer to provide adequate security or
assurance to Executive that Buyer will in fact perform, and that Buyer has and
will have sufficient resources to perform, Company's and Buyer's obligations
hereunder, all as determined by Executive reasonably and in good faith.
(c) For all purposes under this Agreement, a Change in Control
shall be deemed to have "occurred" or been "consummated" when the transaction
(or series of transactions) effecting the same are consummated (that is,
closed), and the date of such occurrence or consummation shall be herein called
the "Control Change Date."
(d) Wherever relevant in this Agreement, references to Company
after a Change in Control shall be deemed to be references to Buyer, as the
context suggests and requires.
(e) If Executive was not an employee of Company on the Control
Change Date on account of a prior termination of the Term of Employment on
account of Death, Disability or No Reason, then as of such Control Change Date,
Company shall cause Employee to have the same rights, and to be in the same
financial position (respecting stock, options, debentures or other securities
issued, or to be issued, by Company), as he would have had or been in had such
termination not occurred, the same to be effected by Company's cash payment to
Executive, within ten days after the Control Change Date, of the appropriate
dollar amount required by this subsection.
(f) If Buyer is an acquisition subsidiary or other entity, the
net assets of which consist principally of Company's assets or stock in
Company, then
(i) the obligations of Buyer hereunder shall be
unconditionally guaranteed by the parent entity thereof, and
(ii) where the context is relevant (such as in
determining benefits of comparable executives after a Change in
Control), references to Buyer shall be deemed to be and include
references to such parent or to relevant affiliates thereof.
13. NOTICE. Any notice, request, demand or other communication
required or permitted to be given under this Agreement shall be given in
writing and if delivered personally, sent by certified or registered mail,
return receipt requested, sent by overnight courier or sent by facsimile
transmission (with confirmation and a copy sent by mail within one day) as
follows (or to such other addressee or address as shall be set forth in a
notice given in the same manner):
If to Executive: [NAME AND ADDRESS OF EXECUTIVE]
If to Company: Kiewit Materials Company
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Telefax: 000.000.0000
Any such notices shall be deemed to be given on the date personally delivered
or sent by facsimile transmission or such return receipt is issued or the day
after if sent by overnight courier.
14. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law, in
any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or any other jurisdiction, but this Agreement shall
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein. If any
court determines that any provision of this Agreement is unenforceable and
therefore acts to reduce the scope or duration of such provision, the provision
in its reduced form, shall then be enforceable.
15. BREACH; WAIVER OF BREACH; SPECIFIC PERFORMANCE. If either
party hereto breaches its obligations under this Agreement, the non-breaching
party shall be entitled to pursue all remedies available at law or in equity
for such breach. The waiver by one party hereto of a breach of any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other breach of such other party. Each party (and intended third-party
beneficiaries) hereto shall be entitled to enforce its rights in relation to
any breach by the other party of any provision of this Agreement and to
exercise all other rights existing in its favor. The parties hereto agree and
acknowledge that Company would be irreparably injured by a violation of
Sections 8 through 10 of this Agreement, that the provisions of such sections
are reasonable, that Company could not adequately be compensated in monetary
damages, in light of the sensitivity of the non-public information of Company
to which Executive will be exposed, and
that Company may apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive relief, including temporary
restraining orders, preliminary injunctions and permanent injunctions in order
to enforce or prevent any violations of such provisions of this Agreement.
16. ASSIGNMENT; THIRD PARTIES. Subject to the provisions of
Section 12, neither Executive nor Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his or
its respective rights or obligations hereunder, without the prior written
consent of the other, which shall not be unreasonably withheld. The personal
representative of Executive (after his Death) is an intended third-party
beneficiary of this Agreement, and may enforce the obligations of Company, and
exercise the rights of Executive, hereunder after the Death of Executive, all
of which obligations and rights (as relevant) shall survive. All payments which
are required to be paid to Executive under this Agreement and which accrue
after the date of his death shall be paid when due to the personal
representative of his estate.
17. AMENDMENT; ENTIRE AGREEMENT. This Agreement may be changed,
modified or amended only by a written document signed by both parties hereto
which refers specifically to this Section 17. Except with respect to the
Indemnification Agreement, this Agreement constitutes the entire agreement
between the parties hereto concerning the subject matter hereof and supersedes
in its entirety all prior and contemporaneous agreements, if any, between the
parties thereto. The enforceability of this Agreement shall not cease or
otherwise be adversely affected by the termination of Executive's employment
with Company.
18. CHOICE OF LAW; LITIGATION. This Agreement shall be governed
by, construed, applied and enforced in accordance with, the laws of the State
of Nebraska. In the event that any party to this Agreement commences any
litigation, proceeding or other legal action in connection with or relating to
this Agreement, any related agreement or any matters described or contemplated
herein or therein, the parties hereto hereby agree (1) under all circumstances
absolutely and irrevocably to institute any litigation, proceeding or other
legal action in a court of competent jurisdiction located within the State of
Nebraska, whether a state or federal court; (2) that in the event of any such
litigation, proceeding or action, such parties will consent and submit to the
personal jurisdiction of any such court described in clause (1) of this Section
18 and to service of process upon them in accordance with the rules and
statutes governing service of process (it being understood that nothing in this
section shall be deemed to prevent any party from seeking to remove any action
to a federal court in the State of Nebraska); (3) to waive to the full extent
permitted by law any objection that they may now or hereafter have to the venue
of any such litigation, proceeding or action in any such court or that any such
litigation, proceeding or action was brought in any inconvenient forum; (4) to
designate, appoint and direct an authorized agent to receive on its behalf
service of any and all process and documents in any legal proceeding in the
State of Nebraska, or as an alternative method of service, to service of
process in any legal proceeding by mailing of copies thereof to such party at
its address set forth herein for communications to such party; (5) that any
service made as provided herein shall be effective and binding service in every
respect; (6) if Executive prevails in such litigation, and if and to the extent
that the same is permitted by law, then Executive shall be entitled to
reimbursement of his reasonable legal fees and expenses of litigation incurred
in connection
therewith; and (7) that nothing herein shall affect the rights of any party to
effect service of process in any other manner permitted by law.
19. FURTHER ACTION. Executive and Company hereby agree to perform
any further acts, and to execute and deliver any additional documents, which
may be reasonably required so as to effect, memorialize or carry out the
provisions of this Agreement.
20. INTENTION OF THE PARTIES. This Agreement is being executed in
connection with a concurrent determination by the Board of Directors that
Company should pursue a Change in Control transaction. The Board of Directors
has also determined that Executive's continued employment with, and efforts on
behalf of, Company respecting continuing operations and pursuit of a Change in
Control transaction are essential and of significant value to the Company. To
assure the same, Company is executing this Agreement with Executive and similar
agreements with other executives whose retention and efforts are similarly
important. Accordingly, the parties hereto hereby acknowledge and agree that
the provisions of this Agreement shall be liberally construed in favor of
Executive and so as to benefit him, to the maximum extent and, without limiting
the generality of the foregoing, so as to provide to him assured and
significant compensation, severance and other benefits in the event of the
termination of the Term of Employment hereunder prior to the end of the Trigger
Period. All provisions of this Agreement shall be construed in accordance with
the foregoing.
21. PAYMENT OBLIGATIONS ABSOLUTE. Company acknowledges that its
obligations during and after the Term of Employment to pay and provide to
Executive the compensation, severance and other benefits provided for herein
shall be absolute and unconditional and shall not be affected by any
circumstances whatsoever, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which Company may claim
against Executive or anyone else. All amounts payable by Company to Executive
hereunder shall be paid without notice or demand. Each and every payment made
hereunder by Company shall be final, and Company shall not seek to recover all
or any part of such payment from Executive, or from whomsoever may be entitled
thereto, for any reason whatsoever. If Company shall fail to pay when due any
payment (including the Termination Payment) required by the provisions of this
Agreement, then from and after the due date thereof, the unpaid amount of such
payment shall thereafter, and until paid, bear interest at an annual rate of
interest equal to 400 basis points in excess of the Prime Rate published each
day in the Money Rates section of The Wall Street Journal, adjusted daily (or
in the absence of such publication, then such rate shall be determined as last
provided for therein).
22. MUTUAL RELEASES. Except as set forth in the last sentence of
this Section, Executive hereby releases Company from any and all claims or
causes of action which Executive may now have or claim against Company arising
out of Executive's employment with Company. Except as set forth in the last
sentence of this Section, Company hereby releases Executive from any and all
claims or causes of action which Company may now have or claim against
Executive arising out of Executive's employment with Company. The preceding two
sentences shall not relate to, cover or release any claims or causes of action
which either Executive or Company may have or claim against the other which
arise under the provisions of this Agreement or the Indemnification Agreement.
23. REFERENCE DATE. This Agreement shall be dated for reference
purposes April 19, 2002.
EXECUTIVE:
-------------------------------------------
[NAME OF EXECUTIVE]
KIEWIT MATERIALS COMPANY
By:
----------------------------------------
Xxxxxxx X. Xxxxxxx, Chairman
SCHEDULE OF EXECUTIVE EMPLOYMENT AGREEMENTS WITH EXECUTIVE OFFICERS
1. Executive Employment Agreement, dated as of April 19, 2002, by and
between the Company and Xxxxxx X. Xxxxxx.
2. Executive Employment Agreement, dated as of April 19, 2002, by and
between the Company and Xxxx X. Xxxxxxx.
3. Executive Employment Agreement, dated as of April 19, 2002, by and
between the Company and Xxxx X. Xxxxxxx.
4. Executive Employment Agreement, dated as of April 19, 2002, by and
between the Company and Xxxx X. Xxxxxx.
5. Executive Employment Agreement, dated as of April 19, 2002, by and
between the Company and Xxxx X. Xxxxxx.
