James Goodwin Inc.
152 West 57th Street
Forty Fifth Floor
New York, NY 10019
As of January 30, 2002
PERSONAL AND CONFIDENTIAL
Mr. Donald Bowman
Chief Financial Officer
Kiewit Materials Company
Kiewit Plaza
Omaha, NE 68131
Dear Don:
This letter "Agreement" will confirm that Kiewit Materials Company ("KMC") and
James Goodwin Inc. ("JGI") have entered into a relationship pursuant to which
JGI will provide financial advisory services to KMC. The terms of this
relationship are as follows:
1. ENGAGEMENT AND SCOPE OF SERVICES. KMC hereby engages JGI and JGI hereby
accepts such engagement, to provide corporate and financial advisory
services ("Services") in connection with the sale of the company. The
parties agree that in defining the scope of any specific Services
requested by KMC, the parties shall develop, to the extent reasonably
possible, an agreed upon timetable, set of deliverables, proposed
budget and such other matters as may be mutually agreed upon by the
parties.
2. FEES AND EXPENSES. For Services provided by JGI pursuant to this
Agreement, KMC shall pay to JGI a fee of $3,000,000 ("Advisory Fee")
payable upon the closing of Rinker's acquisition of KMC. In addition,
during the term of this Agreement, JGI shall be entitled to
reimbursement by KMC for reasonable, ordinary and necessary business
expenses incurred by JGI in the performance of the Services under this
Agreement. For this purpose, the parties agree that the cost of private
aircraft chartered by JGI for travel in connection with the provision
of Services shall constitute reimbursable business expenses.
3. Term. (a) The term of this Agreement shall commence on January 30, 2002
and extend for a period of one (1) year, terminating on January 30,
2003; provided, however, that this Agreement shall be automatically
renewed for successive one (1) year periods, unless either party
notifies the other party in writing prior to the expiration of the then
current term. (b) Notwithstanding anything herein to the contrary, this
Agreement may be terminated by either party, without cause, upon the
provision of five (5) days' prior written notice of such termination to
the other party. In the event of such a termination of this Agreement,
JGI will be entitled to payment of any reimbursable expenses incurred
through the effective date of such termination. In addition, if Rinker
completes it's acquisition of KMC within 12 months following such a
termination of this agreement, KMC shall pay James Goodwin an Advisory
Fee promptly after the completion of such acquisition.
4. INDEMNIFICATION. Our standard indemnification form is attached.
5. MISCELLANEOUS. The parties acknowledge and agree that in the
performance of the Services under this Agreement, JGI is acting as an
independent contractor. This Agreement shall be governed by the laws of
the State of New York. This Agreement may be amended or modified only
by an agreement in writing signed by KMC and JGI. The rights and
responsibilities of JGI hereunder are personal and are not transferable
by assignment or otherwise.
* * *
Kiewit Materials Company
As of January 30, 2002
Page 2
If the terms of our relationship as set forth in this letter agreement are
satisfactory, kindly sign the enclosed copy of this letter agreement and return
it to me.
Very truly yours,
/s/ James Goodwin
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James Goodwin
President
Accepted as of
January 30, 2002
KIEWIT MATERIALS COMPANY
By: /s/ Donald E. Bowman
--------------------------
Donald Bowman
Chief Financial Officer
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As of January 30, 2002
James Goodwin Inc.
152 West 57th Street
Forty Fifth Floor
New York, New York 10019
Dear Mr. Goodwin:
In connection with the activities of James Goodwin Inc. ("JGI") pursuant to a
letter agreement, dated as of the date hereof, between Kiewit Materials Company
(the "Company") and JGI, as the same may be amended from time to time, including
without limitation any activities of JGI in connection with any transaction
contemplated by such letter agreement, whether occurring before, at or after the
date hereof, the Company agrees to indemnify and hold harmless JGI and its
employees (hereinafter collectively referred to as the "indemnified parties"),
to the full extent lawful, from and against any losses, damages, liabilities,
expenses or claims (or actions in respect thereof, including, without
limitation, shareholder and derivative actions) related to or otherwise arising
out of such engagement or JGI's role in connection therewith, and will reimburse
any indemnified party for all expenses (including reasonable counsel fees and
disbursements) as they are incurred by any indemnified party in connection with
investigating, preparing or defending any claim, action, proceeding or
investigation, whether or not in connection with pending or threatened
litigation to which any indemnified party is a party, arising in connection with
or related to JGI's engagement or JGI's role in connection therewith. The
Company will not, however, be responsible for any losses, damages, liabilities,
expenses or claims which are finally judicially determined to have resulted
primarily from any indemnified party's bad faith or gross negligence. The
Company also agrees that no indemnified party will have any liability (whether
direct or indirect, in contract, tort or otherwise) to the Company for or in
connection with such engagement except for any such liability for losses,
damages, liabilities, expenses or claims incurred by the Company that result
primarily from any indemnified party's bad faith or gross negligence.
In the event the foregoing indemnity is unavailable to any indemnified party for
any reason or insufficient to hold any indemnified party harmless, then the
Company agrees to contribute to any such losses, damages, liabilities, expenses
or claims and will do so in such proportion as is appropriate to reflect the
relative benefits received (or anticipated to be received) by, and the relative
fault of, the indemnified parties, on the one hand, and the Company and the
Company's securityholders, on the other, as well as any relevant equitable
considerations, from any actual or proposed transaction. The Company and JGI
agree that it would not be just and equitable if contributions were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.
The Company agrees that it will not, without the prior written consent of JGI,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding, in respect of which
indemnification or contribution may be sought hereunder (if JGI is an actual
party in such claim or action provided that any such settlement, compromise or
consent to the entry of judgment shall not adversely affect JGI or its
Kiewit Materials Company
As of January 30, 2002
Page 2
ability to settle, compromise or consent to the entry of judgment in connection
with any other future claim, action, suit or proceeding o which JGI is an actual
or potential party) unless such settlement, compromise or consent includes an
unconditional release of JGI from all liability arising out of such claim,
action, suit or proceeding. The Company will also promptly reimburse JGI for all
expenses (including reasonable counsel fees) as they are incurred in connection
with investigating, preparing or defending, or providing evidence in, any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not JGI is
an actual or potential party to such claim or action).
The foregoing agreement shall be in addition to any rights that any indemnified
party may have at common law or otherwise, and shall be in addition to any
liability which the Company may otherwise have. ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY CLAIM OR ACTION ARISING OUT OF THIS AGREEMENT IS WAIVED BY BOTH
PARTIES. JGI may assign his rights or obligations under this letter agreement.
This agreement shall remain in full force and effect following the completion or
termination of JGI's engagement and shall be binding upon and inure to the
benefit of any successors, assigns, heirs and personal representatives of the
Company and any indemnified party.
Very truly yours, Accepted
Kiewit Materials Company James Goodwin Inc.
By: /s/ Donald E. Bowman By: /s/ James Goodwin
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