{"id":43589,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/separation-agreement-peter-kiewit-sons-inc-level-3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"separation-agreement-peter-kiewit-sons-inc-level-3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/separation-agreement-peter-kiewit-sons-inc-level-3.html","title":{"rendered":"Separation Agreement &#8211; Peter Kiewit Sons&#8217; Inc., Level 3 Communications Inc., PKS Holdings Inc. and Kiewit Construction Group Inc."},"content":{"rendered":"<pre>                     AMENDMENT TO SEPARATION AGREEMENT\n\n     This Amendment to Separation Agreement ('Amendment) is made\nand entered into as of the 18th day of March, 1998, by and among\nPeter Kiewit Sons', Inc., a Delaware corporation ('PKS'), Level 3\nCommunications, Inc. (formerly, Kiewit Diversified Group Inc.), a\nDelaware corporation ('Level 3'), PKS Holdings, Inc., a Delaware\ncorporation ('PKS Holdings') and Kiewit Construction Group Inc.,\na Delaware corporation ('KCG,' and together with PKS, Level 3,\nand PKS Holdings, collectively the 'Parties' or individually a\n'Party').\n\n     PRELIMINARY STATEMENT. The Parties have previously entered\ninto a Separation Agreement dated as of December 8, 1997 (the\n'Separation Agreement'), with respect to a series of transactions\n(collectively, the 'Transaction') intended to separate the\nconstruction businesses of PKS and the diversified businesses of\nPKS into two separate and independent companies. The Parties\ndesire to amend the Separation Agreement to provide for the\nmodification of certain cost allocation provisions thereof, in\nthe event of the occurrence of certain specified events.\n\n     NOW, THEREFORE, in consideration of the premises, the\nParties hereby agree as follows:\n\n     1.     Section 1.01 of the Separation Agreement is hereby\namended by adding the following definitions:\n\n'Conversion Event: the issuance of shares of Class D Stock in\nexchange for all of the outstanding shares of Class R Stock\npursuant to the approval by the PKS Board, or any successor, of a\n'Forced Conversion' ( as defined in the PKS Certificate).'\n\n'Forced Conversion Date: the date of issuance of shares of Class\nD Stock pursuant to the Conversion Event.'\n\n     2.     Section 3.06(b) of the Separation Agreement is hereby\namended in its entirety to read as follows:\n\n          '(b)     PKS will record the Class R Distribution, and\nregister all persons entitled to the Class R Distribution as\nholders of Class R Stock, on the books and records maintained by\nor on behalf of PKS for the registration of ownership of the\ncapital stock of PKS, effective as of the Class R Distribution\nRecord Date.  PKS will not issue certificates or other\ninstruments to evidence Class R Stock unless and until the Share\nExchange is consummated, and in any event, no sooner than June\n30, 1998.  If the Share Exchange is consummated, PKS will issue\nand distribute certificates evidencing the Class R Stock.  If the\nClass R Distribution is consummated, but the Transaction is later\nabandoned, PKS will exercise its rights to repurchase all of the\nClass R Stock under Section IX.M of the Initial Certificate\nAmendment as promptly as practicable after abandonment of the\nTransaction.'\n\n     3.     Section 7.01 of the Separation Agreement is amended\nin its entirety to read as follows:\n\n     '7.01     General. The Parties have agreed to allocate the\nfinancial burden of Covered Expenses 82.5% to the Diversified\nGroup and 17.5% to the Construction Group (the 'Expense Sharing\nRatio'), whether the Transaction is consummated or abandoned;\nprovided, however, that in the event that the Forced Conversion\nDate occurs on or before July 15, 1998, the Expense Sharing Ratio\nshall be modified so that the Construction Group incurs 100% of\nthe Covered Expenses. In such event, the Construction Group will\nreimburse the Diversified Group for any Covered Expenses paid by\nthe Diversified Group prior to the Forced Conversion Date. All\nother costs or expenses incurred by any Party in connection with\nthe Transaction will be borne by the Party incurring the cost or\nexpense.'\n\n     4.     A paragraph shall be added as Section 7.02 (c)of the\nSeparation Agreement and shall read in its entirety as follows:\n\n          '(d)     The Parties acknowledge that in the event the\nForced Conversion Date occurs on or before July 15, 1998, and the\nExpense Sharing Ratio is modified as provided in Section 7.01\nabove, any success fees, mark-ups, bonuses, equity participation\nor amounts in excess of regularly billable hours, payable to the\nadvisors described in (i), (ii), (iii) and (iv) of Section\n7.02(a), shall be incurred solely for the account of the\nDiversified Group, and shall not be considered to be Covered\nExpenses.\n\n5.     Section 7.04 of the Separation Agreement is amended in its\nentirety to read as follows:\n\n     '7.04     Covered Expense True-Up.  KDG will prepare and\nsubmit to KCG, within 120 calendar days after the date of\nabandonment of the Transaction or the Exchange Date, as the case\nmay be, a schedule of the Other Covered Expenses, together with\nsuch supporting documentation with respect to the Other Covered\nExpenses as KCG reasonably requests.  Within five calendar days\nafter the submission of that schedule, KDG or KCG, as the case\nmay be, will pay KCG or KDG, as the case may be, in cash, an\namount sufficient to ensure that the financial burden of the\nCovered Expenses has been allocated between KCG and KDG in\nproportion to the Expense Sharing Ratio.'\n\n     6.     Unless otherwise specified, capitalized terms used\nherein shall have the meanings specified in the Separation\nAgreement.\n\n     7.     Any other changes or modifications to the Separation\nAgreement necessary to conform such agreement to this Amendment\nare hereby deemed to be made. In all other respects, not\ninconsistent with this Amendment, the terms of the Separation\nAgreement, not specifically or by necessary implication amended\nor modified hereby, shall be and remain in full force and effect\nas modified hereby.\n\n     IN WITNESS WHEREOF, the Parties have caused this Amendment\nto be duly executed as of the date first above written.\n\n                                        PETER KIEWIT SONS', INC.\n\n\n                                        By: \/s\/ Walter Scott, Jr.\n                                            Walter Scott, Jr., President\n\n                                        LEVEL 3 COMMUNICATIONS, INC.\n\n\n                                        By: \/s\/ James Q. Crowe\n                                            James Q. Crowe, President\n\n                                        PKS HOLDINGS, INC.\n\n\n                                        By: \/s\/ Kenneth E.Stinson\n                                            Kenneth E. Stinson, President\n\n                                        KIEWIT CONSTRUCTION GROUP INC.\n\n\n                                        By: \/s\/ Kenneth E. Stinson\n                                            Kenneth E. Stinson, President\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8048],"corporate_contracts_industries":[9519],"corporate_contracts_types":[9622,9628],"class_list":["post-43589","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-level-3-communications-inc","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43589","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43589"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43589"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43589"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}