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Exhibit 2.1
SEPARATION AGREEMENT
This Separation Agreement ("Agreement") is made and entered into as of
August 8, 2000 by and among PETER KIEWIT SONS', INC., a Delaware corporation
("PKS"), KIEWIT MATERIALS COMPANY, a Delaware corporation ("KMC") and KIEWIT
CONSTRUCTION GROUP INC., a Delaware corporation ("KCG", and together with PKS
and KMC, collectively the "Parties" or individually a "Party").
PRELIMINARY STATEMENTS. PKS conducts its operations primarily through
two distinct segments. One segment primarily involves the production and retail
sale of ready-mix concrete, asphalt, sand, gravel, landscaping materials and
railroad ballast (the "Materials Segment"). KMC serves as a holding company for
the subsidiaries of PKS in the Materials Segment. The other segment of PKS'
operations primarily involves the performance of construction and construction
management activities (the "Construction Segment"). KCG serves as a holding
company for the subsidiaries of PKS in the Construction Segment.
The Board of Directors of PKS has determined to pursue a series of
transactions intended to separate the Construction Segment and the Materials
Segment into two separate independent companies (collectively, the
"Transaction"). The Parties desire to provide for the principal corporate
transactions necessary to consummate the Transaction, the relationships among
the Parties and the allocation of risks and responsibilities among the Parties
should the Transaction be consummated, and certain other matters.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the Parties, intending to be legally
bound, hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
1.0 GENERAL. Capitalized terms used herein but not elsewhere defined
shall have the following meanings:
1.1 AFFILIATE: shall mean, with respect to any Person, a Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person; provided,
however, that for purposes of this Agreement, no member of either Group will be
deemed to be an Affiliate of any member of the other Group.
1.2 AGREEMENT: shall mean this Separation Agreement by and among PKS,
KCG and KMC, as the same may hereafter be amended.
1.3 ASSET: shall mean any and all assets and properties, whether real,
personal or mixed, tangible or intangible, wherever located, and whether or not
recorded or reflected or required to be recorded on the books and records or
financial statements of any Person, including, without limitation, the
following: (i) cash, cash equivalents, bank accounts, lock boxes and other
deposit arrangements, notes, deposits, letters of credit, performance and surety
bonds, trade accounts and other accounts and notes receivable (whether current
or non-current); (ii) certificates of deposit,
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banker's acceptances, stock, debentures, evidences of indebtedness, certificates
of interest or participation in profit-sharing agreements, collateral-trust
certificates, preorganization certificates or subscriptions, capital
contributions, joint venture and partnership interests, transferable shares,
investment contracts, voting-trust certificates, fractional undivided interests
in oil, gas or other mineral rights, puts, calls, straddles, options and other
securities or equity interests of any kind or in any Person; (iii) trade
secrets, confidential information, registered and unregistered trademarks,
service marks, service names, trade styles and trade names and associated
goodwill; statutory, common law and registered copyrights; domestic and foreign
patents, applications for any of the foregoing, rights to use the foregoing and
other rights in, to and under the foregoing; (iv) rights under leases,
contracts, licenses, permits, distribution arrangements, sales and purchase
agreements, other agreements and business arrangements; (v) real estate, all
interests in real estate of whatever nature and buildings and other improvements
thereon; (vi) leasehold improvements; (vii) raw materials, work-in-process,
finished goods, consigned goods and other inventories; (viii) prepayments or
prepaid expenses; (ix) claims, causes of action, choses in action, rights of
recovery and rights of set-off of any kind; (x) the right to receive mail,
payments on accounts receivable and other communications; (xi) lists of
advertisers, records pertaining to advertisers and accounts, personnel records,
lists and records pertaining to suppliers and agents, and books, ledgers, files
and business records of every kind, whether in paper, microfilm, microfiche,
computer tape or disk, magnetic tape or any other form; (xii) advertising
materials and other printed or written materials; (xiii) goodwill as a going
concern and other intangible properties; (xiv) employee contracts, including any
rights thereunder to restrict an employee from competing in certain respects;
(xv) licenses and authorizations issued by any governmental authority; (xvi) all
apparatus, computers and other electronic data processing equipment, fixtures,
machinery, equipment, furniture, office equipment and supplies, miscellaneous
supplies and spare parts, automobiles, trucks, aircraft, rolling stock, vessels,
motor vehicles and other transportation equipment, special and general tools,
test devices, prototypes and models and other tangible personal property of any
kind; (xvii) all written technical information, data, specifications, research
and development information, engineering drawings, operating and maintenance
manuals, and materials and analyses prepared by consultants and other third
parties; (xiii) all computer applications, programs and other software,
including operating software, network software, firmware, middleware, design
software, design tools, systems documentation and instructions; (xix) all cost
information, sales and pricing data, customer prospect lists, supplier records,
customer lists, customer and vendor data, correspondence and lists, product
literature, artwork, design, development and manufacturing files, vendor and
customer drawings, (xx) formulations and specifications, quality records and
reports and other books, records, studies, surveys, reports, plans and
documents; and (xxi) except as otherwise expressly provided herein, all rights
under insurance policies and all rights in the nature of insurance,
indemnification or contribution.
1.4 CODE: shall mean the Internal Revenue Code of 1986, as amended, or
any successor legislation, together with the rules and regulations promulgated
thereunder.
1.5 CONSTRUCTION ASSETS: shall mean all of the Assets utilized
immediately prior to the Effective Date by any member of the Construction Group
in connection with the Construction Business.
1.6 CONSTRUCTION BUSINESS: shall mean all of the businesses and
operations conducted at, or at any time before, the Effective Date by PKS or any
Subsidiary of PKS, other than the Materials Business.
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1.7 CONSTRUCTION GROUP: shall mean KCG and the Subsidiaries of KCG as
of the Effective Date.
1.8 CONSTRUCTION INDEMNITEES: shall mean any member of the Construction
Group, any Construction Individual and any Affiliate of any member of the
Construction Group.
1.9 CONSTRUCTION INDIVIDUAL: shall mean any individual who at any time
prior to the Effective Date was a director, officer or employee of any member of
the Construction Group, but solely to the extent that any Loss incurred by such
Person is incurred in that capacity.
1.10 CONSTRUCTION LIABILITIES: shall mean all of the Liabilities
arising out of or resulting from the Construction Business.
1.11 CONSTRUCTION SECURITIES TRANSACTIONS: shall mean the offer to sell
or the sale of PKS Stock, PKS Debentures or New PKS Debentures.
1.12 CONSTRUCTION SEGMENT: shall mean the segment of PKS' operations
primarily involving the performance of construction and construction management
activities.
1.13 CONTINUING AGREEMENTS: shall mean any agreements between a member
or members of the Construction Group, on one hand, and a member or members of
the Materials Group, on the other hand which are not specifically terminated
pursuant to Section 5.4 of this Agreement.
1.14 DEBENTURES: shall mean, collectively, the New PKS Debentures and
the KMC Debentures.
1.15 DEBENTURE EXCHANGE: shall mean the exchange of PKS Debentures for:
(a) KMC Debentures or (b) both New PKS Debentures and KMC Stock, as described in
Section 3.2.
1.16 DEBENTURE EXCHANGE DATE: shall mean the date upon which the
Debenture Exchange occurs.
1.17 DIVIDEND CONDITION: shall mean, with respect to the distribution
in connection with the KMC Stock Distribution, a determination by the PKS Board
that such distribution by PKS will (a) comply with the PKS Certificate, as then
amended and/or restated, (b) will be made out of surplus, within the meaning of
Section 170 of the Delaware General Corporation Law and (c) will not result in
the insolvency of PKS under applicable fraudulent conveyance or fraudulent
transfer statutes.
1.18 EFFECTIVE DATE: shall mean the date on which the KMC Stock
Distribution is made, which will be a date determined by the PKS Board that
occurs after satisfaction of all of the conditions set forth in Section 2.4.
1.19 EXCHANGE ACT: shall mean the Securities Exchange Act of 1934,
together with the rules and regulations promulgated thereunder.
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1.20 GROUP: shall mean either of the Construction Group or the
Materials Group.
1.21 INDEMNIFYING PARTY: shall mean a Person who or which is obligated
under Article IV to provide indemnification.
1.22 INDEMNITEE: shall mean a Person entitled to indemnification under
Article IV.
1.23 INDEMNITY PAYMENT: shall mean an amount that an Indemnifying Party
is required to pay to an Indemnitee pursuant to Article IV.
1.24 INFORMATION: shall mean all information whether or not patentable
or copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, disks, diskettes, tapes, computer programs or
other software, marketing plans, customer names, communications by or to
attorneys (including attorney-client privileged communications), memos and other
materials prepared by attorneys or under their direction (including attorney
work product), computer data and other technical, financial, employee or
business information.
1.25 KCG: shall mean Kiewit Construction Group Inc., a Delaware
corporation.
1.26 KMC: shall mean Kiewit Materials Company, a Delaware corporation.
1.27 KMC DEBENTURES: shall mean the debentures of KMC convertible into
shares of KMC Stock which are distributed in the Debenture Exchange.
1.28 KMC STOCK DISTRIBUTION: shall mean the distribution of KMC Stock
by PKS to holders of record of PKS Stock on the KMC Stock Distribution Record
Date as described in Section 3.3.
1.29 KMC STOCK DISTRIBUTION RECORD DATE: shall mean the date which is
selected by the PKS Board as the record date for determining holders of record
of PKS Stock entitled to receive shares of KMC Stock in the KMC Stock
Distribution.
1.30 KMC SHARE EXCHANGE: shall mean the exchange of PKS Stock for KMC
Stock as described in Section 3.1.
1.31 KMC SHARE EXCHANGE DATE: shall mean the date on which the KMC
Share Exchange occurs.
1.32 LIABILITIES: shall mean all debts, liabilities and obligations,
whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever or however
arising, and whether or not the same would properly be reflected on a balance
sheet, including all related costs and expenses.
1.33 LOSSES: shall mean all losses, Liabilities, damages, actions,
claims, suits, demands, proceedings, inquiries, investigations, judgments or
settlements of any nature or kind, known or
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unknown, fixed, accrued, absolute or contingent, liquidated or unliquidated,
including all related costs and expenses (legal, accounting or otherwise as such
costs are incurred) suffered by an Indemnitee.
1.34 MATERIALS ASSETS: shall mean all of the Assets utilized
immediately prior to the Effective Date by any member of the Materials Group in
connection with the Materials Business.
1.35 MATERIALS BUSINESS: shall mean all of the businesses and
operations conducted at, or at any time before, the Effective Date, by KMC or
any Subsidiary of KMC, other than the business and operations formerly conducted
by Guernsey Stone Company (formerly Guernsey Stone and Construction Company) on
or before March 1, 1999, and now conducted by Guernsey Construction Company.
1.36 MATERIALS EMPLOYEES: shall mean employees of the Materials Group.
1.37 MATERIALS GROUP: shall mean KMC and all of the Subsidiaries of KMC
as of the Effective Date.
1.38 MATERIALS INDEMNITEES: shall mean any member of the Materials
Group, any Materials Individual and any Affiliate of any member of the Materials
Group.
1.39 MATERIALS INDIVIDUAL: shall mean any individual who at any time
prior to the Effective Date was a director, officer or employee of any member of
the Materials Group, but solely to the extent that any Loss incurred by such
Person is incurred in that capacity.
1.40 MATERIALS LIABILITIES: shall mean all of the Liabilities arising
out of or resulting from the Materials Business.
1.41 MATERIALS SECURITIES TRANSACTIONS: shall mean the offer to sell or
the sale of KMC Stock or KMC Debentures.
1.42 MATERIALS SEGMENT: shall mean the segment of PKS' operations
primarily involving the production and retail sale of ready-mix concrete,
asphalt, sand, gravel, landscaping materials and railroad ballast.
1.43 NEW PKS DEBENTURES: shall mean the new reduced principal
debentures of PKS convertible into shares of PKS Stock which are distributed in
the Debenture Exchange.
1.44 PARTY: shall mean any of PKS, KMC or KCG and "Parties" shall mean
all of PKS, KMC and PKS, collectively.
1.45 PKS: shall mean Peter Kiewit Sons', Inc., a Delaware corporation.
1.46 PKS BOARD: shall mean the board of directors of PKS (or the
executive committee of the board of directors of PKS, if the executive committee
of the board of directors of PKS has the authority to take the action required
under this Agreement).
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1.47 PKS CERTIFICATE: shall mean the Restated Certificate of
Incorporation of PKS, as in effect on the date of this Agreement.
1.48 PKS D&O POLICY: shall mean the directors' and officers' liability
insurance policy maintained by PKS for directors and officers of PKS and its
Subsidiaries.
1.49 PKS DEBENTURES: shall mean PKS' outstanding Series 1997 through
Series 1999 Convertible Debentures.
1.50 PKS DEBENTURE SHARES: shall mean the shares of PKS Stock into
which the PKS Debentures are convertible.
1.51 PKS STOCK: shall mean the common stock of PKS, par value $.01 per
share.
1.52 PKS STOCKHOLDERS: shall mean the holders of PKS Stock.
1.53 PERSON: shall mean an individual, a partnership, a limited
partnership, a joint venture, a limited liability company, a corporation, a
trust, an unincorporated organization, any other entity or a government or any
department or agency thereof.
1.54 REGISTRATION STATEMENTS: shall mean the registration statement
filed by PKS and KMC on Form S-4 (Registration No. 333-30760-01), the
registration statement filed by KMC on Form S-4 (Registration No. 333-30768) and
the registration statement filed by KMC on Form 10 (Registration No. 000-29619)
pursuant to the Securities Act and the Exchange Act, as amended from time to
time, including the exhibits thereto.
1.55 REPRESENTATIVE: shall mean, with respect to any Person, any of
such Person's affiliates, directors, officers, employees, agents, consultants,
advisors, accountants, attorneys and representatives.
1.56 RULING: shall mean the ruling obtained by PKS from the Service
regarding certain U.S. Federal income tax matters of the Transaction.
1.57 SEC: shall mean the Securities and Exchange Commission.
1.58 SECURITIES ACT: shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
1.59 SERVICE: shall mean the United States Internal Revenue Service.
1.60 SEPARATION TRANSACTIONS: shall mean, collectively, the
transactions described in Section 3.1 through 3.3 of this Agreement.
1.61 SUBSIDIARY: shall mean, with respect to any specified Person, any
corporation or other legal entity of which such Person or any of its
Subsidiaries controls or owns, directly or indirectly, all or a portion of the
stock or other equity interest entitled to vote on the election of members to
the board or similar governing body.
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1.62 TAX: shall have the meaning specified in the Tax Sharing
Agreement.
1.63 TAX SHARING AGREEMENT: shall mean the tax sharing agreement
between PKS and KMC to be entered into on or before the Effective Date, in form
and substance mutually satisfactory to all of the Parties.
1.64 THIRD-PARTY CLAIM: shall mean any claim, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any governmental or
other regulatory or administrative agency or commission or any arbitration
tribunal asserted by a Person who is not a member of a Group.
1.65 TRANSACTION: shall mean all of the transactions contemplated by
this Agreement, taken together, the effect of which are to separate the
Construction Segment and the Materials Segment.
ARTICLE II
CONDITIONS TO TRANSACTION; FAILURE TO CONSUMMATE THE TRANSACTION
2.1 REGISTRATION STATEMENTS. (a) PKS and KMC have prepared and filed
the Registration Statements.
(b) As promptly as practicable following the date of this Agreement (to
the extent not theretofore accomplished):
(i) PKS and KMC will use their respective best efforts to cause such
Registration Statements to be declared effective and to effect the Transaction
in accordance with the terms of this Agreement and final approval by the PKS
Board, including by (1) responding promptly to any comments from the SEC with
respect thereto, and (2) taking such other actions as shall be reasonably
required in order to have the Registration Statements declared effective as soon
as reasonably practicable following the date hereof.
(ii) PKS and KMC shall take all such actions as may be necessary or
appropriate to register or qualify the KMC Stock and the Debentures under state
securities or "Blue Sky" Laws or such other actions under such laws as is
necessary or appropriate in connection with the Transaction.
2.2 CONDITIONS TO TRANSACTION. The Transaction will be consummated only
if (a) the Ruling remains in effect, (b) the Dividend Condition has been
satisfied with respect to the KMC Stock Distribution, (c) all of the other
Separation Transactions have been consummated, and (d) the PKS Board has finally
approved the consummation of the Transaction.
2.3 PKS BOARD RIGHT TO DEFER, MODIFY OR ABANDON TRANSACTION.
Notwithstanding any other provision of this Agreement or prior approval of the
PKS Board, (a) prior to consummation of the Transaction, the Parties will defer
or modify the Transaction or this Agreement in any respect deemed appropriate by
the PKS Board, and (b) the Parties will abandon the Transaction at any time if
the PKS Board, by a duly adopted resolution, determines that consummation of the
Transaction is no longer in the best interest of all PKS Stockholders. Nothing
herein shall limit or otherwise affect the PKS Board's ability to proceed with
the Transaction at a later date.
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2.4 CONSEQUENCES OF FAILURE TO CONSUMMATE THE TRANSACTION. If the
Parties abandon or otherwise fail to consummate the Transaction, Articles III,
IV, V and VI of this Agreement will terminate and have no further force or
effect, the Parties will not be obligated to consummate any of the Separation
Transactions that have not then been consummated, and only this Section 2.4 and
Articles I, VII and VIII of this Agreement will remain binding on the Parties
and have any further force or effect.
ARTICLE III
THE SEPARATION TRANSACTIONS
3.1 KMC SHARE EXCHANGE. PKS will conduct an exchange offer for all
outstanding shares of PKS Stock held by Materials Employees (the "KMC Share
Exchange"). Materials Employees who hold shares of PKS Stock will have the
option to either: (a) exchange their shares of PKS Stock for shares of KMC Stock
or (b) not participate in the KMC Share Exchange. On the KMC Share Exchange
Date, PKS will exchange shares of KMC Stock for shares of PKS Stock with an
aggregate formula value equal to the aggregate formula value of the shares of
PKS Stock tendered for exchange in the KMC Share Exchange. Materials Employees
who do not participate in the KMC Share Exchange will be required to sell their
shares of PKS Stock back to PKS immediately following the consummation of the
Transaction.
3.2 DEBENTURE EXCHANGE. (a) PKS will conduct an exchange offering for
all of its outstanding PKS Debentures (the "Debenture Exchange"). Holders of PKS
Debentures will have the option: (i) to exchange their PKS Debentures for KMC
Debentures; (ii) to exchange their PKS Debentures for both shares of KMC Stock
and New PKS Debentures; or (iii) not to participate in the Debenture Exchange.
(b) Holders of PKS Debentures who tender their PKS Debentures in
exchange for KMC Debentures will receive KMC Debentures in the same principal
amount as the tendered PKS Debentures and which are convertible into shares of
KMC Stock with an aggregate formula value equal to the formula value of the PKS
Stock into which the tendered PKS Debentures were convertible. The interest rate
payable on the KMC Debentures will be the higher of the applicable federal rate,
or the interest rate payable on the PKS Debentures tendered for exchange. The
KMC Debentures will contain provisions limiting ownership thereof after the
consummation of the Transaction to Materials Employees.
(c) Holders of PKS Debentures who tender their PKS Debentures in
exchange for both KMC Stock and New PKS Debentures will receive New PKS
Debentures, convertible into the same number of shares of PKS Stock as the
tendered PKS Debentures, and a number of shares of KMC Stock equal to the number
of shares of KMC Stock the holders would have received in the KMC Stock
Distribution, had the PKS Debentures been converted immediately prior to the KMC
Stock Distribution Record Date and participated in the KMC Stock Distribution.
The principal amount of the New PKS Debentures will be reduced by the formula
value of the KMC Stock received in the Debenture Exchange. The interest rate
payable on the New PKS Debentures will be the higher of the applicable federal
rate, or the interest rate payable on the PKS Debentures tendered for exchange.
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(d) On the Debenture Exchange Date, PKS will: (i) exchange New PKS
Debentures and KMC Stock for PKS Debentures tendered for exchange in the
Debenture Exchange by those holders so electing such consideration; (ii)
exchange KMC Debentures for PKS Debentures tendered for exchange in the
Debenture Exchange by those holders so electing such consideration; and (iii)
pay all accrued interest due and owing through the Debenture Exchange Date on
all PKS Debentures tendered in the Debenture Exchange.
(e) Any PKS Debentures not tendered for exchange in the Debenture
Exchange will remain outstanding and governed by the original terms of the PKS
Debentures.
(f) On the Debenture Exchange Date, PKS will make a capital
contribution to KMC in the amount of the formula value of the underlying shares
of KMC Stock issuable pursuant to the KMC Debentures issued in the Debenture
Exchange.
3.3 KMC STOCK DISTRIBUTION. PKS will declare a dividend, payable to
holders of PKS Stock as of the KMC Stock Distribution Record Date, of one share
of KMC Stock for each share of PKS Stock held as of the KMC Stock Distribution
Record Date (the "KMC Stock Distribution").
3.4 KMC RECAPITALIZATION. Immediately prior to the Debenture Exchange
Date and the KMC Share Exchange Date, KMC shall effect a stock split sufficient
such that after taking into account the number of shares of KMC Stock to be
distributed in the KMC Share Exchange, there are a sufficient number of
remaining outstanding shares of KMC Stock to distribute one share of KMC Stock
for each outstanding share of PKS Stock in the KMC Stock Distribution and one
share of KMC Stock for each PKS Debenture Share to holders of PKS Debentures who
tendered PKS Debentures in the Debenture Exchange and elected to receive KMC
Stock and New PKS Debentures.
3.5 ISSUANCE OF SECURITIES. (a) KMC will distribute to PKS the number
of shares of KMC Stock issuable in connection with the recapitalization
specified in Section 3.4, evidenced by two certificates, promptly upon such
recapitalization. The number of shares of KMC Stock represented by each
certificate shall be determined by PKS in its sole discretion.
(b) As promptly as practicable after the Effective Date, KMC will
deliver to PKS, in exchange for all shares of KMC Stock held by PKS,
certificates for KMC Stock in names and denominations sufficient to permit PKS
to distribute certificates for KMC Stock in the KMC Stock Distribution, the KMC
Share Exchange and the Debenture Exchange.
(c) As promptly as practicable after the close of the Debenture
Exchange, KMC will deliver to PKS, KMC Debentures in such names and
denominations sufficient to permit PKS to distribute KMC Debentures in the
Debenture Exchange.
3.6 CERTIFICATE DISTRIBUTION. PKS will coordinate delivery of
certificates for any shares of KMC Stock or Debentures with any lending
institution to which shares of PKS Stock or PKS Debentures have been pledged.
PKS will arrange for delivery of such securities and will, if directed in
writing by the holder thereof, deliver such securities directly to such lending
institution.
3.7 ORGANIZATION OF KMC. Prior to the Effective Date, PKS and KMC shall
take any and all actions that are reasonably necessary or desirable to be taken
to effectuate the
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Transactions in a manner consistent with the terms of this Agreement, including,
without limitation, the following: (a) amending the Certificate of Incorporation
of KMC so that the provisions thereof at the Effective Date shall incorporate
the provisions as described in the Registration Statements; (b) amending the
By-Laws of KMC so that the provisions thereof at the Effective Date shall
incorporate the provisions as described in the Registration Statements; (c)
adopting, preparing and implementing appropriate plans, agreements and
arrangements for employees of KMC and non-employee directors of KMC; and (d)
electing or otherwise appointing those individuals designated in the
Registration Statements to be directors or officers of KMC, effective as of or
prior to the Effective Date, except for those to be elected or appointed
thereafter.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION. (a) From and after the Effective Date, KMC will
indemnify, defend and hold harmless each Construction Indemnitee from and
against all Losses incurred or suffered by any Construction Indemnitee arising
out of or due to, directly or indirectly, (i) any breach by KMC of any
obligation under this Agreement, (ii) the Materials Assets, (iii) the Materials
Business, (iv) Materials Securities Transactions, and (v) the Materials
Liabilities.
(b) From and after the Effective Date, PKS and KCG will
indemnify, defend and hold harmless each Materials Indemnitee from and against
all Losses incurred or suffered by any Materials Indemnitee arising out of or
due to, directly or indirectly, (i) any breach by PKS or KCG of any obligation
under this Agreement, (ii) the Construction Assets, (iii) the Construction
Business, (iv) Construction Securities Transactions, and (v) the Construction
Liabilities.
(c) This Section 4.1 shall not apply to any matter or item
specifically covered by indemnification or risk allocation provisions of the
Continuing Agreements.
(d) If an Indemnitee realizes a Tax benefit or detriment by
reason of having incurred a Loss for which such Indemnitee receives an Indemnity
Payment from an Indemnifying Party or by reason of receiving an Indemnity
Payment, such Indemnitee shall pay to such Indemnifying Party an amount equal to
the Tax benefit, or such Indemnifying Party shall pay to such Indemnitee an
additional amount equal to the Tax detriment (taking into account any Tax
detriment resulting from the receipt of such additional amounts), as the case
may be. If, in the opinion of counsel to an Indemnifying Party reasonably
satisfactory in form and substance to the affected Indemnitee, there is a
substantial likelihood that the Indemnitee will be entitled to a Tax benefit by
reason of an Indemnifiable Loss, the Indemnifying Party promptly shall notify
the Indemnitee and the Indemnitee promptly shall take any steps (including the
filing of such returns, amended returns or claims for refunds consistent with
the claiming of such Tax benefit) that, in the reasonable judgment of the
Indemnifying Party, are necessary and appropriate to obtain any such Tax
benefit. If, in the opinion of counsel to an Indemnitee reasonably satisfactory
in form and substance to the affected Indemnifying Party, there is a substantial
likelihood that the Indemnitee will be subjected to a Tax detriment by reason of
an Indemnification Payment, the Indemnitee promptly shall notify the
Indemnifying Party and the Indemnitee promptly shall take any steps (including
the filing of such returns or amended returns or the payment of Tax
underpayments consistent with the settlement of any Liability for Taxes arising
from such Tax detriment) that, in the reasonable judgment of the Indemnitee, are
necessary and appropriate to settle any Liabilities for
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Taxes arising from such Tax detriment. If, following a payment by an Indemnitee
or an Indemnifying Party pursuant to this Section 4.1(d) in respect of a Tax
benefit or detriment, there is an adjustment to the amount of such Tax benefit
or detriment, then each of the Indemnifying Party and the Indemnitees shall make
appropriate payments to the other to reflect such adjustments.
(e) The amount which an Indemnifying Party is required to pay
to any Indemnitee pursuant to this Section 4.1 will be reduced (including
retroactively) by any insurance proceeds and other amounts actually recovered by
such Indemnitee in reduction of the related Loss, it being understood and agreed
that the members of each Group will use their commercially reasonable efforts to
collect any such proceeds or other amounts to which they are entitled, without
regard to whether it is the Indemnifying Party hereunder. If an Indemnitee
receives an Indemnity Payment in respect of an Indemnifiable Loss and
subsequently receives insurance proceeds or other amounts in respect of such
Indemnifiable Loss, then such Indemnitee shall pay to such Indemnifying Party an
amount equal to the difference between (i) the sum of the amount of such
Indemnity Payment and the amount of such insurance proceeds or other amounts
actually received and (ii) the amount of such Loss, adjusted (at such time as
appropriate adjustment can be determined) in each case to reflect any premium
adjustment attributable to such claim.
(f) No person other than an Indemnitee is intended to be a
beneficiary of the indemnification provisions set forth above, and no insurer
will be relieved thereby of any obligation to pay any claims to which it is
obligated or be entitled to any right of subrogation with respect to any amount
paid hereunder.
4.2 PROCEDURE FOR INDEMNIFICATION. (a) If any Indemnitee determines
that it is or may be entitled to indemnification by any Indemnifying Party
(other than in connection with any Third Party Claim), the Indemnitee will
deliver to the Indemnifying Party a written notice specifying, to the extent
reasonably practicable, the basis for its claim for indemnification and the
amount for which the Indemnitee reasonably believes it is entitled to be
indemnified. Within 60 calendar days after receipt of such notice, the
Indemnifying Party will pay the Indemnitee such amount in cash or other
immediately available funds unless the Indemnifying Party objects to the claim
for indemnification or the amount by written notice setting forth the grounds
therefor within such 60 calendar day period. If the Indemnifying Party does not
give the Indemnified Party written notice objecting to such indemnity claim and
setting forth the grounds therefor within 60 calendar days after receipt of such
notice, the Indemnifying Party will be deemed to have acknowledged its liability
for such claim and the Indemnitee may exercise any and all of its rights under
applicable law to collect such amount.
(b) If any Indemnitee receives notice of the assertion of any
Third-Party Claim with respect to which an Indemnifying Party is obligated under
this Agreement to provide indemnification, such Indemnitee will give such
Indemnifying Party notice thereof promptly after becoming aware of such
Third-Party Claim; provided, however, that the failure of any Indemnitee to give
such notice will not relieve any Indemnifying Party of its obligations under
this Article IV, except to the extent that such Indemnifying Party is actually
prejudiced by such failure to give notice. Such notice will describe such
Third-Party Claim in reasonable detail and, if practicable, will indicate the
estimated amount of the Indemnifiable Loss that has been or may be sustained by
such Indemnitee.
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(c) An Indemnifying Party, at such Indemnifying Party's own
expense and through counsel chosen by such Indemnifying Party (which counsel
shall be reasonably satisfactory to the Indemnitee), may elect to defend any
Third-Party Claim. If an Indemnifying Party elects to defend a Third-Party
Claim, then, within fifteen calendar days after receiving notice of such
Third-Party Claim (or sooner, if the nature of such Third-Party Claim so
requires), such Indemnifying Party will notify the Indemnitee of its intent to
do so, and such Indemnitee shall cooperate in the defense of such Third-Party
Claim. Such Indemnifying Party will pay such Indemnitee's reasonable
out-of-pocket expenses incurred in connection with such cooperation. After
notice from an Indemnifying Party to an Indemnitee of its election to assume the
defense of a Third-Party Claim, such Indemnifying Party will not be liable to
such Indemnitee under this Article IV for any legal or other expenses
subsequently incurred by such Indemnitee in connection with the defense thereof;
provided, however, that such Indemnitee will have the right to employ one law
firm as counsel to represent such Indemnitee (which firm shall be reasonably
acceptable to the Indemnifying Party) if, in such Indemnitee's reasonable
judgment, either a conflict of interest between such Indemnitee and such
Indemnifying Party exists in respect of such claim or there may be defenses
available to such Indemnitee which are different from or in addition to those
available to such Indemnifying Party, and in that event (i) the reasonable fees
and expenses of such separate counsel shall be paid by such Indemnitee and (ii)
each of such Indemnifying Party and such Indemnitee shall have the right to run
its own defense in respect of such claim. If an Indemnifying Party elects not to
defend against a Third-Party Claim, or fails to notify an Indemnitee of its
election as provided in this Section 4.2 within the period of fifteen calendar
days described above, such Indemnitee may defend, compromise and settle such
Third-Party Claim; provided, however, that no such Indemnitee may compromise or
settle any such Third-Party Claim without the prior written consent of the
Indemnifying Party, which consent shall not be withheld unreasonably.
Notwithstanding the foregoing, the Indemnifying Party shall not, without the
prior written consent of the Indemnitee, (i) settle or compromise any
Third-Party Claim or consent to the entry of any judgment which does not include
as an unconditional term thereof the delivery by the claimant or plaintiff to
the Indemnitee of a written release from all liability in respect of such
Third-Party Claim or (ii) settle or compromise any Third-Party Claim in any
manner that in the reasonable judgment of the Indemnifying Party, is likely to
adversely affect the Indemnitee.
(d) If for any reason the indemnification provided by this
Agreement is unenforceable, the Indemnifying Party will contribute to the amount
payable by the Indemnitee as a result of the related losses an amount
appropriate to reflect equitable considerations.
4.3 REMEDIES CUMULATIVE. The remedies provided in this Article IV will
be cumulative and will not preclude assertion by any Indemnitee of any other
rights or the seeking of any other remedies against any Indemnifying Party.
ARTICLE V
ADDITIONAL COVENANTS
5.1 FURTHER ASSURANCES. Each of the Parties will use its best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things, reasonably necessary, proper or advisable under applicable laws,
regulations and agreements to consummate and make effective the Transaction.
Each Party will cooperate with the other Parties, and execute and deliver, or
use its best efforts to cause to be executed and delivered, all instruments,
including instruments of conveyance, assumption, assignment and transfer, and to
make all filings with, and to obtain all consents,
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approvals or authorizations of, any governmental or regulatory authority or any
other Person under any permit, license, agreement, indenture or other
instrument, and take all such other actions as such Party may reasonably be
requested to take by any other Party, consistent with the terms of this
Agreement, in order to effectuate the provisions and purposes of this Agreement.
5.2 TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES. (a) The Parties
intend that, upon consummation of the Transaction, (i) one or more members of
the Construction Group, and not any member of the Materials Group, will hold all
right, title and interest in and to all Construction Assets, and that one or
more members of the Construction Group, and not any member of the Materials
Group, will have the sole liability for Construction Group Liabilities; and (ii)
one or more members of the Materials Group, and not any member of the
Construction Group, will hold all right, title and interest in and to all
Materials Assets, and one or more members of the Materials Group, and not any
member of the Construction Group, will have the sole liability for all Materials
Group Liabilities.
(b) Prior to the Effective Date, each Party will take any
action, and will cause their Subsidiaries to take any action, requested by any
member of the other Group entitled under Section 5.2(a) to obtain an Asset or to
be relieved of a Liability, reasonably necessary to transfer any such Asset or
to assume any such Liability. If any such transfer or assumption of Assets or
Liabilities is not consummated on or before the Effective Date, the Party
retaining such Asset or Liability will hold such Asset in trust for the use and
benefit of the Party entitled thereto (at the expense of the Party entitled
thereto), or will retain such Liability for the account of the Party by whom
such Liability is to be assumed pursuant hereto, as the case may be, and will
take such other action as may be reasonably requested by the Party to whom such
Asset is to be transferred (including licensing, contracting and leasing
arrangements), or by whom such Liability is to be assumed, in order to place
such Party, insofar as reasonably possible, in the same position as if such
Asset or Liability had been transferred as contemplated hereby. If and when any
such Asset or Liability becomes transferable, such transfer will be effected as
promptly as possible.
(c) Notwithstanding any other provision of this Agreement,
this Agreement will not constitute an agreement to transfer any Asset or assume
any Liability if an assignment of the Asset or the assumption of the Liability
violates any law, rule or regulation or constitutes a breach of any agreement
relating to such Asset or Liability.
5.3 NO REPRESENTATIONS OR WARRANTIES. Each Group understands and agrees
that no member of the other Group is, in this Agreement, representing or
warranting in any way as to the Assets, the Business or the Liabilities of the
Group or as to any consents or approvals required in connection with the
consummation of the transactions contemplated by this Agreement, it being agreed
and understood that each Group is taking all of its Assets "as is, where is" and
that each Group will bear the economic and legal risk that the title of any
member of the Group to any Assets shall be other than good and marketable and
free from encumbrances.
5.4 TERMINATED AGREEMENTS. On or before the Effective Date, the Parties
will agree to a schedule of agreements, contracts and arrangements that will
terminate and have no further force or effect as of the Effective Date. Each
Party shall, at the reasonable request of another Party, take or cause to be
taken, such other actions as may be necessary to effect the termination of such
agreements. To the extent that there are such agreements, such schedule shall be
attached hereto as Schedule 5.4.
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5.5 CONTINUING AGREEMENTS. Neither this Agreement nor the Transaction
shall modify, amend or otherwise affect any of the Continuing Agreements. If
there is a conflict between this Agreement and a Continuing Agreement, the
Continuing Agreement shall control.
5.6 INTERCOMPANY ACCOUNTS. Effective as of the close of business on the
day prior to the Effective Date, all intercompany receivables or payables and
loans then existing between any member of one Group and any member of the other
Group will be settled by way of payment or offset.
5.7 KIEWIT NAME. From and after the Effective Date, KMC shall have a
revocable non-exclusive right and license to use the name "Kiewit" solely as
part of KMC's name. Use by KMC of the name "Kiewit" shall be limited solely in
combination with the name "Materials." PKS may revoke such license at any time
upon the sole determination of the PKS Board. Upon such revocation, KMC will
change its corporate name to another name not including "Kiewit" as part of the
name, and will cause all of its Subsidiaries to change their corporate names if
necessary to corporate names not including "Kiewit" as part of the name. In
addition, as soon as reasonably practicable after such revocation, KMC will use
its best efforts to, and will cause its Subsidiaries to use their best efforts
to, cease using "Kiewit" in connection with the business activities of the
Materials Group.
5.8 INSURANCE. (a) As of the Effective Date, directors and officers of
the members of the Materials Group will no longer be covered by the PKS D&O
Policy for acts occurring on and after the Effective Date. KMC will obtain,
effective not later than the Effective Date, directors and officers liability
insurance for all directors and officers of the members of the Materials Group,
on such terms and conditions and providing such coverages as KMC deems
appropriate.
(b) No Party shall, without the consent of the other Parties, provide
any insurance carrier with a release, or amend, modify or waive any rights under
any such policy or agreement, if such release, amendment, modification or waiver
would adversely affect any rights or potential rights of another Group;
provided, however, that the foregoing shall not preclude a Party either from
presenting any claim or from exhausting any policy limit.
(c) This Agreement shall not be considered as an attempted assignment
of any policy of insurance or as a contract of insurance and shall not be
construed to waive any right or remedy of the Parties in respect of any
insurance policy or any other contract or policy of insurance.
(d) From and after the Effective Date, KMC shall be entitled to the
benefit of any reserves held by any insurance carrier with respect to the
Materials Liabilities, and PKS shall be entitled to the benefit of any reserves
held by any insurance carrier with respect to the Construction Liabilities.
(e) On or before the Effective Date, the Parties will agree upon the
insurance policies in which PKS is the lead named insured which will be amended
to substitute KMC as the lead named insured effective as of the Effective Date.
Each Party shall, at the reasonable request of another Party, take or cause to
be taken, such other actions as may be necessary to effectuate such change.
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(f) Notwithstanding any other provision hereof, each Group shall retain
all rights of any insured party under each insurance policy and insurance
contract owned or maintained by PKS under which any member of such Group is a
named insured, including any right of indemnity and the right to be defended by
or at the expense of the insurer. Each Party shall pay its allocable share of
any retrospectively-rated premiums arising out of any claims made by such Party
under such insurance policies.
(g) The Parties agree to cooperate and provide reasonable assistance to
each other with regard to any dispute with any third party (including insurers
or third-party administrators) regarding any matter related to any of the above
insurance policies.
5.9 OTHER RELATIONSHIPS. The Parties agree to negotiate in good faith
and enter into on or before the Effective Date, mutually acceptable arrangements
with respect to the following matters: (a) the lease by KMC, on a short-term
basis, of office space from KCG in the KCG headquarters building at Kiewit
Plaza, Omaha, Nebraska; (b) the provision by KMC of certain services related to
the operation of MIMS Software by members of the Construction Group; (c) the
provision by PKS of interim administrative services to KMC; (d) the treatment of
Materials Employees who are participants prior to the Effective Date in the
401(k) and profit sharing plans maintained by PKS; and (e) administration of
insurance claims with respect to policies maintained for the benefit of both
Groups prior to the Effective Date.
5.10 NO RESTRICTIONS COMPETITIVE ACTIVITIES; CORPORATE OPPORTUNITIES.
It is the explicit intent of each of the Parties that the provisions of this
Agreement shall not include any non-competition or other similar restrictive
arrangements with respect to the range of business activities which may be
conducted by the Parties. Accordingly, each of the Parties acknowledges and
agrees that nothing set forth in this Agreement shall be construed to create any
explicit or implied restriction or other limitation on (i) the ability of any
Party to engage in any business or other activity which competes with the
business of any other Party, or (ii) the ability of any Party to engage in any
specific line of business or engage in any business activity in any specific
geographic area.
5.11 GUARANTEE OBLIGATIONS. KMC and its Subsidiaries shall cooperate
with PKS and use their best efforts to terminate all obligations of PKS or any
of its Subsidiaries (other than a member of the Materials Group) under any loan,
financing, lease, contract or other obligation in existence as of the Effective
Date pertaining to the Materials Business for which PKS or any of its
Subsidiaries (other than a member of the Materials Group) is or may be liable,
as guarantor, original tenant, primary obligor or otherwise. If such a
termination or substitution is not effected by the Effective Date, (a) KMC shall
indemnify and hold harmless PKS for any Losses arising from or relating to any
such obligations, and (b) from and after the Effective Date, KMC shall not, and
shall not permit any of its Subsidiaries to, enter into, renew or extend the
term of, increase its obligations under, or transfer to a third party, any loan,
lease, contract or other obligation for which PKS or its Subsidiaries (other
than a member of the Materials Group) is or may be liable pursuant to any such
obligation.
5.12 TAX SHARING AGREEMENT. The Parties agree to negotiate in good
faith and enter into the Tax Sharing Agreement on or before the Effective Date.
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ARTICLE VI
INFORMATION
6.1 ACCESS TO INFORMATION. (a) As soon as practicable following the
Effective Date, and to the extent requested, each Group shall provide to the
other Group any documents, contracts, books, records and data (including but not
limited to minute books, stock registers, stock certificates and documents of
title) in its possession relating to such other Group or such other Group's
business and affairs; provided that if any such documents, contracts, books,
records or data relate to both Groups or the business and operations of both
Groups, each such Group shall provide to the other Group true and complete
copies of such documents, contracts, books, records or data.
(b) After the Effective Date, each Group will afford to the
other Group and to the other Group's Representatives reasonable access and
duplicating rights during normal business hours to all Information within such
Group's possession relating to such other Group's businesses, insofar as such
access is reasonably required by such other Group. In addition, KMC shall have
access during such time to Information of historical significance that relates
to the Materials Business. Without limiting the foregoing, Information may be
requested under this Section for audit, accounting, claims, litigation and tax
purposes, as well as for purposes of fulfilling disclosure and reporting
obligations.
6.2 PRODUCTION OF WITNESSES. After the Effective Date, each Group will
use reasonable efforts to make available to the other Group its Representatives
as witnesses to the extent that any such Person may reasonably be required in
connection with any legal, administrative or other proceedings in which the
requesting Party may from time to time be involved and will otherwise cooperate
with the other Group, to the extent reasonably required in connection with any
such proceeding.
6.3 RETENTION OF RECORDS. Except as otherwise required by law or agreed
in writing, or as otherwise provided in the Continuing Agreements, each Group
will retain, for a period of at least ten years following the Effective Date,
all significant Information in such Group's possession or under its control
relating to the business of the other Group and, after the expiration of such
ten year period, prior to destroying or disposing of any such Information, (a)
the Group proposing to dispose of or destroy any such Information shall provide
no less than 90 calendar days' prior written notice to the other Group,
specifying the Information proposed to be destroyed or disposed of, and (b) if,
prior to the scheduled date for such destruction or disposal, the other Group
requests in writing that any of the Information proposed to be destroyed or
disposed of be delivered to such other Group, the Group proposing to dispose of
or destroy such Information promptly shall arrange for the delivery of the
requested Information to a location specified by, and at the expense of, the
requesting Group.
6.4 REIMBURSEMENT. Each Group providing information or witnesses to the
other Group, or otherwise incurring any expense under Sections 6.1, 6.2 or 6.3,
including costs and expenses paid to third parties for storage of Information on
behalf of the other Group, will be entitled to receive from the other Group,
upon the presentation of invoices therefor, payment for all out-of-pocket costs
and expenses as may be reasonably incurred in providing such information,
witnesses or cooperation.
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6.5 CONFIDENTIALITY. From and after the Effective Date, each Group will
hold, and shall use its reasonable best efforts to cause its Representatives to
hold, in confidence all Information concerning the other Party obtained by it
prior to the Effective Date or furnished to it by such other Party pursuant to
this Agreement or the Continuing Agreements, and will not release or disclose
such Information to any other Person, except its Representatives, who will be
bound by the provisions of this Section; provided, however, that each Group may
disclose such Information to the extent that (a) disclosure in the opinion of
such Group's counsel, is required or advisable under applicable law (including
the federal securities laws), or (b) such Group can show that such Information
was (i) available to such Group on a nonconfidential basis prior to its
disclosure by the other Group, (ii) in the public domain through no fault of
such Group or (iii) lawfully acquired by such Party from other sources after the
time that it was furnished to such Party pursuant to this Agreement or the
Continuing Agreements. Notwithstanding the foregoing, each Group will be deemed
to have satisfied its obligations under this Section with respect to any
Information if it exercises the same care with regard to such Information as it
takes to preserve confidentiality for its own similar Information.
6.6 MAIL AND OTHER COMMUNICATIONS. After the Effective Date, a Party
may receive mail, telegrams, packages and other communications properly
belonging to another Party. Accordingly, at all times after the Effective Date,
each Party authorizes the other to receive and open all mail, telegrams,
packages and other communications received by it and not unambiguously intended
for the other Party or any of the other Party's officers or directors, and to
retain the same to the extent that they relate to the business of the receiving
Party or, to the extent that they do not relate to the business of the receiving
Party, the receiving Party shall promptly deliver such mail, telegrams, packages
or other communications (or, in case the same relate to both businesses, copies
thereof) to the other Party as provided for in Section 8.4 hereof. Any mail,
telegram, package or other communication received by a Party that is
unambiguously intended for the other Party shall be promptly delivered to the
other Party as provided for in Section 8.4 hereof. The provisions of this
Section 6.6 are not intended to, and shall not, be deemed to constitute an
authorization by a Party to permit another Party to accept service of process on
its behalf and no Party is or shall be deemed to be the agent of another for
service of process purposes.
ARTICLE VII
EXPENSES
7.1 GENERAL. Except as otherwise provided in the Tax Sharing Agreement,
the Parties have agreed to allocate 100% of the financial burden of all costs of
the Transaction to the Construction Group, whether the Transaction is
consummated or abandoned.
ARTICLE VIII
MISCELLANEOUS
8.1 COMPLETE AGREEMENT. This Agreement, the Exhibits and Schedules
hereto and the agreements and other documents referred to herein will constitute
the entire agreement between the Parties with respect to the subject matter
hereof and will supersede all previous negotiations, commitments and writings
with respect to such subject matter.
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8.2 SURVIVAL OF AGREEMENTS. All covenants and agreements of the Parties
contained in this Agreement will survive the Transaction.
8.3 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Nebraska (other than the laws regarding
choice of laws and conflicts of laws) as to all matters, including matters of
validity, construction, effect, performance and remedies.
8.4 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable
telegram, telex or other standard form of telecommunications, or by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
If to PKS or KCG:
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
Attention: General Counsel
If to KMC:
Kiewit Materials Company
Kiewit Plaza
Omaha, Nebraska 68131
Attention: General Counsel
8.5 AMENDMENT AND MODIFICATIONS. This Agreement may be amended,
modified or supplemented, and any provision of this Agreement may be waived,
only by a written agreement signed by all of the Parties.
8.6 SUCCESSORS AND ASSIGNS; NO THIRD-PARTY BENEFICIARIES. This
Agreement and all of the provisions hereof will be binding upon and inure to the
benefit of the Parties, their successors and permitted assigns, but neither this
Agreement nor any of the rights, interest and obligations hereunder may be
assigned by any Party without the prior written consent of each of the other
Parties (which consent shall not be unreasonably withheld). This Agreement is
solely for the benefit of the Parties (and Indemnitees) and is not intended to
confer any rights or remedies upon any other Persons.
8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
8.8 INTERPRETATION. (a) The Article and Section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the Parties and shall not in any way affect the meaning or
interpretation of this Agreement.
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(b) The Parties intend that the Transaction will be a
distribution and exchange pursuant to Section 355(a) and Section 368(a)(1)(D) of
the Code, and all provisions of this Agreement will be so interpreted.
8.9 LEGAL ENFORCEABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any such prohibition or
unenforceability in any jurisdiction will not invalidate or render unenforceable
such provision in any other jurisdiction. Each Party acknowledges that money
damages would be an inadequate remedy for any breach of the provisions of this
Agreement and agrees that the obligations of the Parties under this Agreement
will be specifically enforceable.
8.10 DISPUTE RESOLUTION. Except to the extent that a Party seeks
injunctive relief to enforce any particular provision of this Agreement, if, in
the event of any dispute or controversy arising out of this Agreement, its
performance, or breach, the Parties are unable to settle the dispute themselves,
within thirty (30) calendar days after the dispute arises, then the dispute
shall be referred for resolution by agreement between the President of KMC and
the President of PKS. In the event that the foregoing officers are unable to
resolve such dispute within thirty (30) calendar days, then the Parties shall be
free to pursue any other rights or remedies to which they may be entitled.
8.11 SCHEDULES. All schedules referred to herein are a part of this
Agreement as if fully set forth herein.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
PETER KIEWIT SONS', INC.
By /s/ Kenneth E. Stinson
-------------------------------
Kenneth E. Stinson, President
KIEWIT MATERIALS COMPANY
By /s/ Christopher J. Murphy
-------------------------------
Christopher J. Murphy, President
KIEWIT CONSTRUCTION GROUP INC.
By /s/ Kenneth E. Stinson
-------------------------------
Kenneth E. Stinson, President
19
