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XXXXX XXXXXXXXXX AGREEMENT
FOR EMPLOYEE STOCKHOLDERS
THIS AGREEMENT is made on _________________, 1998, between
__________________________________________________ (the
"Stockholder") and XXXXX XXXXXX SONS', INC., a Delaware
corporation (the "Corporation").
WHEREAS, the Corporation's Restated Certificate of
Incorporation sets forth certain restrictions on the ownership
of shares of its Common Stock ("Stock"); and
WHEREAS, the Stockholder desires to own Stock subject to the
terms and restrictions set forth in this Agreement and in the
Corporation's Restated Certificate of Incorporation.
NOW THEREFORE, in consideration of the issuance of Stock to
the Stockholder and for other good and valuable consideration,
the receipt and sufficiency of which is acknowledged by each
of the parties hereto, the Stockholder and the Corporation
agree as follows:
(1) Stock Subject to Agreement. Unless otherwise specifically
set forth in a separate written agreement between the
Corporation and the Stockholder, this Agreement shall apply to
all Stock issued to the Stockholder on or before the date of
this Agreement and any additional shares of Stock which are
issued to the Stockholder after the date of this Agreement.
This Agreement supersedes any previous agreement between the
Corporation and the Stockholder relating to such Stock and the
sale or repurchase of such Stock by the Corporation.
(2) Prohibited Transfers. Except as specifically provided in
this Agreement, the Stockholder shall not sell, assign, give,
bequeath, pledge, or otherwise transfer any or all of the
Stockholder's Stock by any means, whether voluntary or
involuntary. Any such attempted sale or transfer shall be void
and of no force or effect. If such transfer is attempted, the
Corporation shall give written notice to the Stockholder to
sell and deliver all of such Stock to the Corporation within
90 days after the date on which the Corporation receives
actual notice of the attempted or proposed transfer.
(3) Voluntary Sales to Corporation. The Stockholder may sell
all or part of the Stockholder's Stock to the Corporation by
delivering to the Corporation the certificates representing
the Stock to be sold with a written notice stating the
Stockholder's desire to sell such Stock. The Corporation will
accept such notice only during the first fifteen days of each
calendar month. Notices received thereafter will be deemed to
have been received on the first day of the following month.
The Corporation shall purchase any Stock so offered. The
Stockholder's right to sell and the Corporation's duty to
repurchase Stock are subject to section 17 of this Agreement.
(4) Corporation's Option to Purchase All Shares. If the
Stockholder attempts to make a prohibited transfer of, or
voluntarily sells to the Corporation, part of the
Stockholder's Stock, the Corporation shall have the option to
purchase all or any part of the Stockholder's remaining Stock.
The Corporation may exercise this option within 90 days after
(a) the date of the written notice to the Stockholder referred
to in section 2 in the case of an attempted prohibited
transfer, or (b) the receipt of the certificates and written
notice referred to in section 3 in the case of a voluntary
sale to the Corporation. The Corporation may exercise such
option by giving the Stockholder written notice to sell and
deliver all or part of the Stockholder's remaining Stock, as
specified in such notice.
(5) Termination of Employment. Within 90 days after the
termination of the Stockholder's employment for any reason
other than death, the Corporation shall give a written notice
to the Stockholder to sell and deliver all of such
Stockholder's Stock to the Corporation. For the purpose of
this Agreement, "employment" means 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.
(6) Death.
(a) Within 180 days after the death of the Stockholder, the
Corporation shall give a written notice to the Stockholder's
successors or the personal representative of the Stockholder's
estate to sell and deliver all of such Stockholder's Stock to
the Corporation.
(b) Notwithstanding section 11 of this Agreement, the
deceased Stockholder's successors or the personal
representative of the Stockholder's estate shall have the
option to fix one or more alternate dates for the sale of the
Stock by giving written notice of such dates to the
Corporation and identifying the shares of Stock to be sold on
such dates. Notice of any alternate sales dates must be given
within 180 days after the death of the Stockholder or within
10 days after the date of the Corporation's notice to sell and
deliver under giver paragraph (a), above, whichever comes
first. The earliest alternate sale date may be the date of the
notice given by the representative under this paragraph (b)
and the latest sale date shall be the tenth day of January
following the end of the fiscal year of the Corporation during
which the Stockholder died. The stock certificates
representing the Stock to be sold on a particular date shall
be delivered to the Corporation on or before such date.
(7) Authorized Transfers and Pledges.
(a) With the prior approval of the Board of Directors, the
Stockholder may transfer Stock to a tax-exempt charitable
organization approved as such by the Internal Revenue Service.
(b) With the prior approval of the Board of Directors, a
Stockholder may transfer Stock to: (i) a fiduciary for the
benefit of the members of the Stockholder's immediate family,
(ii) a corporation 100 percent owned by the Stockholder or the
Stockholder and their spouse and/or children, or (iii) a
fiduciary for the benefit of such a corporation.
(c) As a condition precedent to transfer, each transferee
under (a) or (b) above must sign a new repurchase agreement in
a form satisfactory to the Corporation.
(d) The Stockholder may pledge Stock for loans in connection
with the ownership of Stock.
(8) Excessive Amount. Under Article Sixth, subparagraph
(D)(3)(d) of the Corporation's Restated Certificate of
Incorporation, upon a determination by the Board of Directors
that the amount of Stock held by the Stockholder is excessive
in view of the Corporation's policy that the level of
Stockholder's stock ownership should reflect certain factors,
including but not limited to (a) the relative contribution of
that Stockholder to the economic performance of the
Corporation, (b) the effort being put forth by such
Stockholder, and/or (c) the level of responsibility of such
Stockholder, the Corporation shall have the option to purchase
from such Stockholder an amount of Stock sufficient to
decrease the amount of Stock owned by such Stockholder to an
amount that the Board of Directors, in its discretion,
believes is appropriate. In the event that the Corporation
elects to exercise this option, it shall give the Stockholder
written notice to sell and deliver to the Corporation the
amount of Stock specified in such notice.
(9) Purchase Price. Article Sixth, subparagraph (D)(4) of the
Corporation's Restated Certificate of Incorporation, provides
that, if the Corporation is obligated to repurchase shares of
Stock, the purchase price shall be the Common Share Price.
Article Eighth of the Corporation's Restated Certificate of
Incorporation sets forth definitions of the terms "Common
Share Price", as well as "Formula Value", and other terms
relevant to calculating the price applicable to any particular
repurchases. These provisions of the Corporation's Restated
Certificate of Incorporation are incorporated herein by
reference.
(10) Payment. Subject to section 11 of this Agreement:
(a) The Corporation shall make payment for any Stock it
purchases within 60 days after (i) the date upon which the
Corporation receives such Stock in the event of a voluntary
sale by the Stockholder under section 3 of this Agreement,
(ii) the date of the sale of such Stock specified in any
notice given by the Stockholder's successors or personal
representative under section 6(b) of this Agreement, or (iii)
the date of the Corporation's written notice to sell and
deliver such Stock in the event of any other sale under this
Agreement.
(b) The Corporation shall be authorized to deduct from the
payment of the purchase price for Stock sold by the
Stockholder any amount owed by the Stockholder to the
Corporation and/or to any pledgee of such Stock.
(c) The Corporation shall not be obligated to pay any
interest on any amounts to be paid under this Agreement.
(d) If the per share price at which the Corporation is to
purchase Stock has not been computed within the time
prescribed for payment under this Agreement because the
preparation of the audited Consolidated Financial Statements
of the Corporation and Consolidated Subsidiaries has not yet
been completed, the Corporation shall make an "initial
payment" within the time period prescribed for payment for
such Stock, using the per share price applicable to purchases
of Stock during the preceding fiscal year. If the per share
price for purchases during the current year is determined to
be greater than that for the preceding year, the Corporation
shall pay the difference between the initial payment and the
actual amount entitled to be received under the current per
share price within 10 days after the date upon which the per
share price for the current year is completed. If the per
share price for purchases during the current year is
determined to be less than that for the preceding year, the
person or entity to whom the initial payment was made shall
repay the difference between the initial payment and the
actual amount entitled to be received under the current per
share price within 10 days after the date of a written notice
from the Corporation requiring payment of such amount.
(11) Surrender of Stock. Except as provided in section 6(b)
of this Agreement, the Stockholder or the Stockholder's
successors or the personal representative of the Stockholder's
estate must sell and deliver stock certificates to the
Corporation within 10 days after the date of the Corporation's
notice to sell and deliver such Stock. Any stock certificate
to be sold to the Corporation must be endorsed in blank or
accompanied by appropriate stock powers executed in blank, and
accompanied by such other evidence of authority as the
Corporation may reasonably require. In the event of failure to
deliver stock certificates with required evidence of authority
within the time periods specified, the Corporation's Secretary
shall cancel each certificate on the books of the Corporation
and such shares of Stock shall be deemed no longer
outstanding. The holder of canceled shares of Stock shall have
no further interest as a stockholder of the Corporation with
respect to such shares of Stock except the right to receive
the purchase price.
(12) Notices. Any notices 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
Stockholder or the Stockholder's successors or personal
representative, if mailed, shall be sent to the Stockholder's
last known address. The notice to the Corporation shall be
delivered or mailed to the Secretary, Xxxxx Xxxxxx Sons' Inc.,
0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxx 00000.
(13) Governing Law. This Agreement shall be governed by the
laws of the State of Delaware.
(14) Failure to Meet Times. No failure by the Corporation, the
Stockholder, or the successors or personal representative of
the Stockholder's estate to take any action within any time
period prescribed by this Agreement shall render the Stock of
the Corporation transferable other than in conformance with
the provisions of this Agreement or preclude the Corporation
from exercising its right to purchase or cancel any such
Stock.
(15) Binding Effect. This Agreement is binding on the
Stockholder's transferees, pledgees, heirs, successors,
personal representatives, and assigns, and upon the successors
and assigns of the Corporation.
(16) Severability. If any portion of this Agreement is held
invalid, that invalidity shall not affect the remaining
portions which can be given effect without the invalid
portion.
(17) Suspension of Repurchase Duties. Article Sixth,
subparagraph (D)(8) of the Corporation's Restated Certificate
of Incorporation provides that the Board of Directors may
suspend the Corporation's obligation to repurchase Stock for a
period of not longer than 365 days.
(18) Restated Certificate of Incorporation. The Corporation's
Restated Certificate of Incorporation contains additional
restrictions which may apply to the Stockholder. The parties
agree that, if the provisions of the Corporation's Restated
Certificate of Incorporation, including any amendments that
may be adopted subsequent to the date of this Agreement, are
more restrictive than the provisions of this Agreement, the
more restrictive provisions of the Restated Certificate of
Incorporation shall prevail.
***
WITNESS:
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Stockholder
ATTEST:
XXXXX XXXXXX SONS', INC.
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Assistant Secretary President
