EXHIBIT 4.3
STOCK REPURCHASE AGREEMENT
FOR EMPLOYEE STOCKHOLDERS
THIS AGREEMENT is made on _______________, 199_,
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
