Exhibit 4.4.1.4


 


EXECUTIVE EMPLOYMENT AGREEMENT



BY AND BETWEEN



KIEWIT MATERIALS COMPANY



AND



CHRISTOPHER J. MURPHY


 


 


REVISED JULY 8, 2002


 

















 


TABLE OF CONTENTS


 


	
  1.

  	
  Employment

  	
   

  
	
  2.

  	
  Extent
  of Employment

  	
   

  
	
  3.

  	
  Compensation

  	
   

  
	
  4.

  	
  Term of Employment

  	
   

  
	
  5.

  	
  Termination

  	
   

  
	
  6.

  	
  Reimbursement of Expenses

  	
   

  
	
  7.

  	
  Benefits

  	
   

  
	
  8.

  	
  Agreements
  to Protect Company’s Proprietary Information and Goodwill

  	
   

  
	
  9.

  	
  Defense of Claims

  	
   

  
	
  10.

  	
  Non-Disparagement

  	
   

  
	
  11.

  	
  Certain Other Definitions

  	
   

  
	
  12.

  	
  Change in Control

  	
   

  
	
  13.

  	
  Notice

  	
   

  
	
  14.

  	
  Severability

  	
   

  
	
  15.

  	
  Breach;
  Waiver of Breach; Specific Performance

  	
   

  
	
  16.

  	
  Assignment;
  Third Parties

  	
   

  
	
  17.

  	
  Amendment; Entire Agreement

  	
   

  
	
  18.

  	
  Choice
  of Law; Litigation

  	
   

  
	
  19.

  	
  Further Action

  	
   

  
	
  20.

  	
  Intention
  of the Parties

  	
   

  
	
  21.

  	
  Payment Obligations
  Absolute

  	
   

  
	
  22.

  	
  Mutual Releases

  	
   

  
	
  23.

  	
  Revision

  	
   

  
	
  24.

  	
  Reference Date

  	
   

  



 

















 


LIST OF
DEFINITIONS


 


	
  Annual Bonus

  	
  1

  
	
  Appraised Value

  	
  10

  
	
  Auditor

  	
  4

  
	
  base amount

  	
  4

  
	
  Base Salary

  	
  1

  
	
  Board of Directors

  	
  1

  
	
  Buyer

  	
  8

  
	
  Cause

  	
  8

  
	
  Change in Control

  	
  9

  
	
  Company

  	
  1

  
	
  Confidential Information

  	
  9

  
	
  Constructive Termination

  	
  10

  
	
  Control Change Date

  	
  12

  
	
  Death

  	
  2

  
	
  Disability

  	
  2

  
	
  excess parachute payments

  	
  4

  
	
  Excise Tax

  	
  3

  
	
  Executive

  	
  1

  
	
  Gross-Up Payment

  	
  3

  
	
  Indemnification Agreement

  	
  4

  
	
  knowing

  	
  11

  
	
  knowledge

  	
  11

  
	
  No Reason

  	
  2

  
	
  parachute payments

  	
  4

  
	
  Parent Incentive Program

  	
  1

  
	
  Relevant Trigger Period

  	
  11

  
	
  Remaining Trigger Period

  	
  11

  
	
  Resignation

  	
  2

  
	
  Scheduled Term End Date

  	
  11

  
	
  Security

  	
  4

  
	
  Tax Counsel

  	
  4

  
	
  Term of Employment

  	
  2

  
	
  Termination Date

  	
  2

  
	
  Termination Payment

  	
  11

  
	
  Total Payments

  	
  3

  
	
  Trigger Period

  	
  11

  



 

















 


EXECUTIVE
EMPLOYMENT AGREEMENT


 


(REVISED JULY    , 2002)


 


CHRISTOPHER
J. MURPHY
(“Executive”), and KIEWIT MATERIALS COMPANY,
a Delaware corporation (“Company”), hereby agree as follows:


 


1.  Employment. Executive is now, and has for some time
served as, an executive employee of Company. 
Company hereby agrees to continue the employment of Executive as Chief
Executive Officer of Company, and Executive hereby agrees to so continue such
employment, during the Term of Employment, all pursuant to this Agreement.  The principal place of such employment shall
be in Omaha, Nebraska, Executive’s current home city of residence.  The scope and duties of Executive in such
employment shall be those as have last characterized his employment through the
date hereof.


 


2.    Extent of Employment.  Executive shall perform his duties and
obligations hereunder faithfully, and to the best of his ability, under the
lawful direction of the Board of Directors of Company (the “Board of
Directors”).  Executive shall devote all
of his business time, energy and skill such as may be reasonably necessary for
the performance of his duties and obligations hereunder, consistent with the
past practices and norms of Company and shall abide by the reasonable rules,
customs and usages from time to time established by Company.


 


3.    Compensation.  In consideration of services provided
hereunder, Company shall compensate Executive during the Term of Employment as
follows:


 


(a)    Company shall pay to Executive, as base compensation during the Term of
Employment, in substantially equal monthly installments, an annual base salary
of $340,000 (the “Base Salary”).  The
Board of Directors shall annually review and may increase or reduce the same in
its sole discretion, except that during the Trigger Period, the Board of Directors
may not reduce the Base Salary below $340,000.


 


(b) 
Company shall pay to Executive an annual bonus compensation (“Annual
Bonus”), which is to be based on Executive’s performance during and respecting
each calendar year during the Term of Employment. The payment and amount of
each year’s Annual Bonus shall be at the sole discretion of the Board of
Directors, except that during and respecting the Trigger Period, the Board of
Directors must pay an Annual Bonus of no less than $450,000. Such Annual Bonus shall
be paid concurrently with other annual bonuses paid by Company to other
executives, unless earlier required by other provisions of this Agreement.


 


(c) 
Within 60 days after the occurrence of a Change in Control, Company
shall provide Executive with a description of the incentive compensation
program in which comparable executives of Company’s United States parent
participates (herein called the “Parent Incentive Program”).  During the 14 days after Executive’s receipt
of such


 


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description, Executive shall the right to elect to participate in the
Parent Incentive Program by delivering written notice to Company in the manner
set forth in such description. If Executive so elects to so participate in the
Parent Incentive Program, then such participation shall be in lieu of
Executive’s right to receive an Annual Bonus, and this Executive Employment
Agreement shall be amended so as to eliminate Executive’s right to receive an
Annual Bonus (including as a component of a Termination Payment), and so as to
incorporate Executive’s participation in the Parent Incentive Program.


 


4.  Term of
Employment.  The “Term of Employment” shall commence on
the date hereof and shall end on the Scheduled Term End Date or as otherwise
provided in Section 5.  The last day of
the Term of Employment is herein called the “Termination Date.”


 


5.  Termination.


 


(a) 
Subject to Company’s obligations to make the payments contemplated by
the following provisions of this Section 5, the Term of Employment may be
terminated at any time prior to the Scheduled Term End Date:


 


(i) upon the death of Executive (“Death”); or


 


(ii) upon the Board of Directors reasonable determination, after
consultation with a competent medical physician, because of physical or mental
disability, Executive is unable to perform, and does not perform, his material
duties hereunder for 120 days in any continuous 240-day period (“Disability”);
or


 


(iii) by Company for Cause; or


 


(iv) by Company for any other reason (“No Reason”), or by Company for
no reason (also “No Reason”), or by Company by Constructive Termination (also
“No Reason”); or


 


(v) by Executive voluntarily and for no reason after 30 days’ prior
written notice to Company and the Board of Directors (“Resignation”).


 


Executive acknowledges that nothing contained herein, or otherwise
stated by or on behalf of Company, modifies or amends the right of Company to
terminate Executive at any time, with or without Cause.


 


(b) 
Upon termination of the Term of Employment on account of Death,
Disability, No Reason, Cause or Resignation, then:


 


(i) within ten days following the Termination Date, Company shall pay
to Executive (1) all accrued and unpaid Base Salary and benefits (including
vacation pay and benefits under Section 7 with respect to the period of the
Term of Employment prior to termination, (2) reimbursement for all expenses
under Section 6 with respect to such period, (3) any other benefits (including
COBRA) required by law to be provided after termination of employment under the


 


2

















 


circumstances and (4) customary severance
pay, if any, as established by Company pursuant to then current practice; and


 


(ii) all unvested equity interests (such as stock options) in or
respecting Company, if there are any, shall vest as of such Termination Date;
and


 


(iii) all 401(k) benefits and accounts shall vest as of such
Termination Date.


 


(c) 
In addition to the salary, benefits and reimbursements set forth in
subsection 5(b), and in lieu of severance pay provided for in clause (4)
thereof, in the event that Executive’s employment is terminated during the
Trigger Period on account of Death, Disability or No Reason, then:


 


(i)    during
the Remaining Trigger Period, Company shall also (1) maintain and provide at
its sole expense, or reimburse Executive for 100% of the premiums necessary to
procure and maintain, COBRA continuation coverage under, or equivalent coverage
to that provided under, the Company’s then current group health insurance plan,
all benefiting Executive and any of his dependents who are eligible therefor,
and all as referenced in Section 4980B of the Internal Revenue Code, and (2)
provide to Executive reasonable (in relation to Executive’s circumstances and
position) professional outplacement services, excepting that the same shall
only be so provided during the first nine months of such period, but all of the
foregoing shall be so maintained and provided only to the extent not otherwise
to be maintained or provided under the provisions of subsection 5(b) above; and


 


(ii)   within
ten days after the commencement of the Remaining Trigger Period, Company shall
also pay to Executive the Termination Payment in a lump sum.


 


(d)                                 (i)    Whether
or not Executive becomes entitled to the Termination Payment, if any of the
payments or benefits received or to be received by Executive in connection with
a Change in Control or Executive’s termination of employment (whether pursuant
to the terms of this Agreement or any other plan, arrangement or agreement with
Company, with any person whose actions result in a Change in Control or with
any person affiliated with Company or such person, (but not including any
payments or benefits received by Executive in connection with any Security (as defined
in Section 5(d)(ii)) (all such payments and benefits, excluding the Gross-Up
Payment (as defined herein), being hereinafter referred to as the “Total
Payments”) become subject to any excise tax imposed under section 4999 of the
Internal Revenue Code (the “Excise Tax”), Company shall pay to Executive an
additional amount (the “Gross-Up Payment”) such that the net amount retained by
Executive, after deduction of any Excise Tax on the Total Payments and any
federal, state and local income and employment taxes and Excise Tax upon the
Gross-Up Payment, and after taking into account the phase out of itemized
deductions and personal exemptions attributable to the Gross-Up Payment, shall
be equal to the Total Payments.


 


3

















 


(ii)   This Agreement shall not apply to any
payments or benefits received by Executive in connection with any Security (as
defined herein) owned by Executive, which payments or benefits are subject to
that certain Indemnification Agreement executed by and between Executive and
Company of even date herewith (the “Indemnification Agreement”). For purposes
of this Section 5(d), the term “Security” shall mean any one or more of the
convertible debentures of Company issued as Series 2000A, 2000B, 2000C, 2000D
and 2001.


 


(iii)   For purposes of determining whether any of
the Total Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (A) all of the Total Payments shall be treated as “parachute
payments” (within the meaning of section 280G(b)(2) of the Internal Revenue
Code) unless, in the opinion of tax counsel (“Tax Counsel”) selected by Company
and reasonably acceptable to Executive, such Total Payments (in whole or in
part) do not constitute parachute payments, including by reason of section
280G(b)(4)(A) of the Internal Revenue Code, (B) all “excess parachute payments”
within the meaning of section 280G(b)(l) of the Internal Revenue Code shall be
treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of section
280G(b)(4)(B) of the Internal Revenue Code) in excess of the “base amount”
allocable to such reasonable compensation (within the meaning of section
280G(b)(3) of the Internal Revenue Code), or are otherwise not subject to the
Excise Tax, and (C) the value of any noncash benefits or any deferred payment
or benefit shall be determined by the accounting firm which was, immediately
prior to the Change in Control, Company’s independent auditor (the “Auditor”)
in accordance with the principles of sections 280G(d)(3) and (4) of the
Internal Revenue Code.  For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to
pay federal income tax at the highest marginal rate of federal income taxation
in the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of Executive’s residence on the Termination Date (or if there is no
Termination Date, then the date on which the Gross-Up Payment is calculated for
purposes of this Section 5(d)), net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.


 


(iv)   In the event that the Excise Tax is finally
determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, Executive shall repay to Company, within 5
business days following the time that the amount of such reduction in the
Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction (including that portion of the Gross-Up Payment
attributable to the Excise Tax and federal, state and local income and
employment taxes imposed on the Gross-Up Payment being repaid by Executive),
plus in the event that such amount is not repaid within 5 business days after
Executive is notified of such determination interest on the amount of such
repayment at 120% of the rate provided in section 1274(b)(2)(B) of the
Code.  In the event that the Excise Tax
is determined to exceed the amount taken into account hereunder in calculating
the Gross-Up Payment


 


4

















 


(including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), Company shall make a
further Gross-Up Payment in respect of such excess (plus any interest,
penalties or additions payable by Executive with respect to such excess) within
5 business days following the time that the amount of such excess is finally
determined.  Executive and Company shall
each reasonably cooperate with the other in connection with any administrative
or judicial proceedings concerning the existence or amount of liability for
Excise Tax with respect to the Total Payments.


 


(v)   The Gross-Up Payment shall be made not
later than the 30th day following the Termination Date (or if there
is no Termination Date, then the 30th day after the date on which
the Gross-Up Payment is calculated for purposes of this Section 5(d)). At the
time the Gross-Up Payment is made, Company shall provide Executive with a
written statement setting forth the manner in which such payment was calculated
and the basis for such calculations including, without limitation, any opinions
or other advice Company has received from Tax Counsel, the Auditor or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).


 


6.  Reimbursement
of Expenses.  During the Term of Employment, Company shall
reimburse Executive for reasonably documented travel, entertainment and other
expenses reasonably incurred by Executive in connection with the performance of
his duties hereunder and, in each case, in accordance with the rules, customs
and usages promulgated by Company from time to time in effect.


 


7.  Benefits. 
Executive shall be entitled to participate in and be covered by any
insurance plan (including but not limited to life, medical, dental, health,
accident, hospitalization and disability), 401(k) plan or pension plan, all as
then in effect for and benefiting any executive employees of Company, excepting
only that Executive shall not be eligible to participate in the Parent
Incentive Program unless Executive has duly elected to so participate as
hereinabove provided.  Executive shall
also be entitled to paid vacation in each twelve-month period in accordance
with the current vacation policy of Company, subject to the reasonable
requirements of Company as to the timing of the taking of such vacation.


 


8.  Agreements
to Protect Company’s Proprietary Information and Goodwill.  In
consideration of Executive’s employment and the compensation payable in this
Agreement, and in order to protect the confidential business information and
goodwill of Company’s business that Executive has or will gain from being
unfairly used against Company, Executive agrees that, during Executive’s
employment with Company and with respect to items (i) (A), (i) (B), (ii) (A),
(ii) (B), (ii) (C), (iii) (A), and (iii) (B) for the remainder of the Trigger
Period and with respect to items (i) (C), (i) (D), (ii) (D), (ii) (E), (iii)
(C) and (iii) (D) for a period of 36 months following the termination of
Executive’s employment with Company for any reason, Executive will not,
directly or indirectly,


 


(i)                                     with respect to Executive’s activities in
Nebraska, engage in any of the following:


 


5

















 


(A)                              solicit or sell, either on behalf of
Executive or on behalf of any other person, firm, company or corporation,
products or services which compete with any of Company’s or any of its
affiliates’ products or services to those persons, companies, firms or
corporations who were or are customers of Company or any of its affiliates
during Executive’s employment and with whom Executive has personal contact
during and as a result of Executive’s employment with Company;


 


(B)                                interfere with Company’s or any of its
affiliates’ contractual business relationships with its suppliers;


 


(C)                                Solicit or in any manner encourage, directly
or indirectly, any employee of Company or any of its affiliates to leave its
employ;


 


(D)                               disclose to any person, or use or otherwise
exploit for Executive’s own benefit or for the benefit of anyone other than
Company, any Confidential Information, whether prepared by Executive or not;
however, any Confidential Information may be disclosed (1) to officers,
representatives, employees and agents of Company who need to know such
Confidential Information in order to perform the services or conduct the
operations required or expected of them in the business, (2) in good faith by
Executive in connection with the performance of his duties hereunder or (3)
after prompt notice to Company, as may be required by law; (any trade secrets
will also be entitled to all of the protections and benefits under any
applicable law; if any information which Company deems to be a trade secret is
found by a court of competent jurisdiction not to be a trade secret for
purposes of this Section 8, then the Confidential Information will be
considered confidential information for purposes of this Section 8; in the case
of trade secrets, Executive hereby waives any requirement that Company submit
proof of the economic value of any trade secret or post any bond or other
security with respect to them); and


 


(ii)                                  with respect to Executive’s activities in any
state other than Nebraska or California, engage in any of the following:


 


(A)                              possess an ownership interest in, be employed
in a management position or hold a management consulting position with, or
otherwise have any material involvement with a concrete ready-mix, asphalt,
aggregate or related product business to the extent that it conducts operations
within a 100-mile radius of any facility owned by Company or its affiliates on
August 1, 2002, or within a 100-mile radius of any other location at which
Executive’s employment by Company is based at any time during the 12 months
prior to Executive’s termination and as to which Company advises Executive that
it considers subject to this provision;


 


(B)                                solicit or sell, either on behalf of
Executive or on behalf of any person, firm, company or corporation, products or
services which compete with any of Company’s or any of its affiliates’ products
or services to those persons, companies, firms or corporations who were or are
customers of Company or any of its affiliates during Executive’s employment;


 


6

















 


(C)                                interfere with Company’s or any of its
affiliates’ contractual business relationships with its suppliers;


 


(D)                               solicit or in any manner encourage, directly
or indirectly, any employee of Company or any of its affiliates to leave its
employ;


 


(E)                                 disclose to any person, or use or otherwise
exploit for Executive’s own benefit or for the benefit of anyone other than
Company, any Confidential Information, whether prepared by Executive or
not.  However, any Confidential
Information may be disclosed (1) to officers, representatives, employees and
agents of Company who need to know such Confidential Information in order to
perform the services or conduct the operations required or expected of them in
the business, (2) in good faith by Executive in connection with the performance
of his duties hereunder or (3) after prompt notice to Company, as may be
required by law; (any trade secrets will also be entitled to all of the
protections and benefits under any applicable law; if any information which
Company deems to be a trade secret is found by a court of competent
jurisdiction not to be a trade secret for purposes of this Section 8, then the
Confidential Information will be considered confidential information for
purposes of this Section 8; in the case of trade secrets, Executive hereby
waives any requirement that Company submit proof of the economic value of any
trade secret or post any bond or other security with respect to them); and


 


(iii)                               with respect to Executive’s activities in
California, engage in any of the following:


 


(A)                              solicit or sell, either on behalf of
Executive or on behalf of any person, firm, company or corporation, products or
services which compete with any of Company’s or any of its affiliates’ products
or services to the customers of Company and its affiliates listed on Exhibit A
attached hereto.  Executive acknowledges
and agrees that he has had and will have personal contact with each such
customer during and as a result of Executive’s employment with Company;


 


(B)                                interfere with Company’s or any of its
affiliates’ contractual business relationships with its suppliers;


 


(C)                                solicit or in any manner encourage, directly
or indirectly, any employee of Company or any of its affiliates to leave its
employ;


 


(D)                               disclose to any person, or use or otherwise
exploit for Executive’s own benefit or for the benefit of anyone other than
Company, any Confidential Information, whether prepared by Executive or
not.  However, any Confidential
Information may be disclosed (A) to officers, representatives, employees and
agents of Company who need to know such Confidential Information in order to
perform the services or conduct the operations required or expected of them in
the business, (B) in good faith by Executive in connection with the performance
of his duties


 


7

















 


hereunder or (C) after prompt notice to Company, as may be required by
law, (any trade secrets will also be entitled to all of the protections and
benefits under any applicable law, if any information which Company deems to be
a trade secret is found by a court of competent jurisdiction not to be a trade
secret for purposes of this Section 8, then the Confidential Information will
be considered confidential information for purposes of this Section 8; in the
case of trade secrets, Executive hereby waives any requirement that Company
submit proof of the economic value of any trade secret or post any bond or
other security with respect to them).


 


Immediately after termination of employment with Company, Executive
will deliver to Company all materials in his possession involving Confidential
Information. Executive acknowledges and agrees that the foregoing restrictions
are reasonable, necessary and appropriate to protect Company’s proprietary
information and its business goodwill.


 


9.  Defense of Claims. 
Executive agrees that, from the date hereof, and continuing for a
reasonable period after termination of the Term of Employment, Executive will
reasonably cooperate with Company in defense of any claims that may be made
against Company provided such defense does not interfere with Executive’s then
current employment.  Company agrees to
reimburse Executive for all of Executive’s reasonable out-of-pocket expenses
associated with such cooperation, including travel expenses and the fees and
expenses of Executive’s legal counsel.


 


10.  Non-Disparagement. 
During and after the Term of Employment, Executive agrees that he shall
not make any false, defamatory or disparaging statements about Company, its
business, or the officers or directors of Company, and Company agrees that
neither the officers nor the directors of Company shall make any false,
defamatory or disparaging statements about Executive.


 


11.  Certain
Other Definitions.


 


(a) 
“Buyer” means the acquirer of control in a Change in Control
transaction,


 


(b) 
“Cause” means any of the following:


 


(i) Executive’s conviction of, or plea of guilty or nolo contendere to, a serious felony or a
crime involving embezzlement, conversion of property or moral turpitude;


 


(ii) Executive’s commission of fraud, embezzlement or conversion of
property, as reasonably determined by the Board of Directors based upon
credible evidence;


 


(iii) a reasonable and good faith finding by the Board of Directors of
Executive’s knowing breach of any of his fiduciary duties to Company or making
of a misrepresentation or omission which breach, misrepresentation or omission
would reasonably be expected to materially adversely affect the business,
properties, assets, condition (financial or other) or prospects of Company,
provided that Executive has been given written notice thereof and


 


8

















 


within
30 days after such notice fails to cure the breach, misrepresentation or
omission;


 


(iv) Executive’s willful and continual neglect or failure (other than
by reason of Death or Disability) to discharge his material duties,
responsibilities or obligations prescribed by this Agreement or any other
agreement between Executive and Company, provided that Executive has been given
written notice thereof and within 30 days after such notice fails to cure the
neglect or failure;


 


(v) Executive’s alcohol or substance abuse, which materially interferes
with Executive’s ability to discharge his duties, responsibilities and
obligations prescribed by this Agreement, provided that Executive has been
given notice and 30 days from such notice fails to cure such abuse;


 


(vi) Executive’s material violation, with the actual knowledge of Executive,
of any obligations under this Agreement to Company, including without
limitation, those set forth in Sections 8 through 10 of this Agreement,
provided that Executive has been given written notice thereof and within 30
days after such notice fails to cure such material violation; or


 


(vii) Executive’s personal (as opposed to Company’s) material and
knowing failure to observe or comply with all material and relevant laws and
regulations, whether as an officer, stockholder or otherwise, such that the same
would reasonably be expected to have a material adverse effect on Company’s
ongoing business, operations, conditions, other business relationships or
properties, provided, that Executive has been given written notice thereof and
within 30 days after such notice fails to cure such failure.


 


(c) 
“Change in Control” means the consummation of a transaction or series of
transactions whereby there is a change “in the ownership or effective control”
of Company, or a change “in the ownership of a substantial portion of the
assets” of Company, as those terms are used in Section 280G(b)(2)(A) of the
Internal Revenue Code, which consummation occurs (no matter when) substantially
in accordance with and pursuant to a definitive agreement executed prior to
April 19, 2003.


 


(d) 
“Confidential Information” means any confidential information including,
without limitation, any study, data, calculations, software storage media or
other compilation of information, patent, patent application, copyright,
“know-how”, trade secrets, customer lists, details of client or consultant
contracts, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition plans
or any portion or phase of any scientific or technical information, ideas,
discoveries, designs, inventions, creative works, computer programs (including
source or object codes), processes, procedures, formulae, improvements or other
proprietary or intellectual property of Company, whether or not in written or
tangible form, and whether or not registered, and including all files, records,
manuals, books, catalogues, memoranda, notes, summaries, plans, reports,
records, documents and other evidence thereof. 
Notwithstanding the foregoing, the term “Confidential


 


9

















 


Information” does not include, and there shall be no obligation
hereunder with respect to, information that is or becomes generally available
to the public other than as a result of a disclosure by Executive not
permissible hereunder.


 


(e) 
“Constructive Termination” means such ongoing intentional or negligent
actions or inactions by, or permitted by, Company (including (1) coercion, (2)
physical or mental abuse, (3) material adverse change from now current
circumstances in the scope, nature, authority or duties of Executive’s
employment, unless such change involves a transfer (without relocating from
either Omaha, Nebraska or Phoenix, Arizona) to a comparable position in a
division or a subsidiary of the United States parent of Company or any of its
affiliates and such division’s or subsidiary’s operations are comparable in
size to Company’s operations as of the date of Change in Control, (4)
relocation from Omaha, Nebraska, except for relocation to Phoenix, Arizona, (5)
excessive (in relation to now current practice) required business travel,
unless such additional travel is required due to a change in the location of
Company’s, or its United States parent’s, corporate headquarters, and travel to
and from such headquarters is required of comparable executive employees of
Company or its United States parent, (6) failure to provide to Executive
compensation, authority, duties or benefits (including medical benefits, but
not including the Parent Incentive Program unless Executive has duly elected to
participate therein) which are comparable to those then provided to comparable
executive employees of Company, (7) other acts which could be deemed under
common law to be “constructive termination” of Executive’s employment, or (8)
default by Company in performance of its obligations under this Agreement),
such that Executive reasonably and in good faith determines that he has
reasonable cause to, and he consequently does in fact, submit his resignation
hereunder, provided that Company has been given, prior to such resignation,
written notice thereof and within 30 days after such notice fails to cease and
cure such actions or inactions; however, no such notice shall be so required in
the event that one notice (relating to the same or different actions or
inactions) has been theretofore so given. Executive and Company acknowledge and
agree that, in the event of the occurrence of a Change in Control, the
provisions of the preceding sentence shall be liberally construed in favor of,
and so as to benefit to the maximum extent, Executive. A resignation by
Executive pursuant to the provisions of this subsection 1l(e) shall not be
deemed to be a Resignation as defined in subsection 5(a)(v) above, but instead
the same shall be deemed to be a termination by Company by Constructive
Termination and thus to be a termination by Company for No Reason under
subsection 5(a)(iv) above. Notwithstanding the provisions of phrase 11c(4)
above, a Constructive Termination shall not be deemed to have occurred if,
subsequent to a Change in Control, Executive is both (1) required by Company to
relocate to any city within the continental United States, and (2) Company
reimburses Executive for all reasonable moving expenses and for the amount by which
the Appraised Value (as hereinafter defined) of Executive’s Omaha, Nebraska
residence exceeds (if it does) the net sale proceeds received by Executive from
the sale thereof (“Appraised Value”) means the average of the appraised values
of Executive’s said residence as of the date of such Change in Control
determined by three licensed appraisers, one being selected by Executive, one
being selected by Company and the third being selected by the first two
appraisers, the cost of which shall be borne by Company).


 


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(f) 
“knowing” and “knowledge” means actual knowledge without any duty of
investigation.


 


(g) 
“Remaining Trigger Period” means that period during the Trigger Period
which (1) commences on the last to occur as between the Termination Date and
the Control Change Date, and (2) ends on the last day of the Trigger Period.


 


(h) “Relevant Trigger Period” is that period
during the Trigger Period which (1) commences on the Termination Date and (2)
ends on the last day of the Trigger Period.


 


(i) 
“Scheduled Term End Date” means the date when Executive ceases to be an
employee of Company on account of Death, Disability, Cause, No Reason or
Resignation; however, if a Change in Control occurs, then the “Scheduled Term
End Date” means the third anniversary of the Control Change Date.


 


(j) 
“Termination Payment” means that dollar amount which is equal to the sum
of


 


(i)  the product obtained
when 1/365th of Executive’s Base Salary in effect on the Termination
Date is multiplied by the number of days in the Relevant Trigger Period,
plus


 


(ii)  the sum of the
minimum Annual Bonuses which would have been due to Executive during or
respecting the Relevant Trigger Period.


 


Such Termination Payment shall not be reduced by any present value or
similar factor; Executive shall not be required to mitigate the amount of such
Termination Payment by securing other employment or otherwise; and such
Termination Payment shall not be reduced by reason of Executive’s having secured
other employment or for any other reason.


 


(k) 
“Trigger Period” means that period which (1) commences on April 19,
2002, and (2) ends on the third anniversary of the Control Change Date. Without
limiting the generality of the foregoing, if no Change in Control occurs then
no Trigger Period occurs.


 


12.  Change in Control.  In
the event of the occurrence of a Change in Control:


 


(a) 
Company shall cause Buyer to thereafter continue the employment of
Executive under this Agreement and to otherwise assume and perform all of
Company’s obligations under this Agreement in the place and stead of Company;
in other words, subsequent to a Change in Control, and as a result thereof,
Executive shall continue to be employed by Buyer under the terms of this
Agreement.


 


(b) 
Company shall cause Buyer to provide adequate security or assurance to
Executive that Buyer will in fact perform, and that Buyer has and will have
sufficient resources to perform, Company’s and Buyer’s obligations hereunder,
all as determined by Executive reasonably and in good faith.


 


11

















 


(c) 
For all purposes under this Agreement, a Change in Control shall be
deemed to have “occurred” or been “consummated” when the transaction (or series
of transactions) effecting the same are consummated (that is, closed), and the
date of such occurrence or consummation shall be herein called the “Control
Change Date.”


 


(d) 
Wherever relevant in this Agreement, references to Company after a
Change in Control shall be deemed to be references to Buyer, as the context
suggests and requires.


 


(e) 
If Executive was not an employee of Company on the Control Change Date
on account of a prior termination of the Term of Employment on account of
Death, Disability or No Reason, then as of such Control Change Date, Company
shall cause Employee to have the same rights, and to be in the same financial
position (respecting stock, options, debentures or other securities issued, or
to be issued, by Company), as he would have had or been in had such termination
not occurred, the same to be effected by Company’s cash payment to Executive,
within ten days after the Control Change Date, of the appropriate dollar amount
required by this subsection.


 


(f) 
If Buyer is an acquisition subsidiary or other entity, the net assets of
which consist principally of Company’s assets or stock in Company, then


 


(i) the obligations of Buyer hereunder shall be unconditionally
guaranteed by the parent entity thereof, and


 


(ii) where the context is relevant (such as in determining benefits of
comparable executives after a Change in Control), references to Buyer shall be
deemed to be and include references to such parent or to relevant affiliates
thereof.


 


13.  Notice.  Any
notice, request, demand or other communication required or permitted to be
given under this Agreement shall be given in writing and if delivered
personally, sent by certified or registered mail, return receipt requested,
sent by overnight courier or sent by facsimile transmission (with confirmation
and a copy sent by mail within one day) as follows (or to such other addressee
or address as shall be set forth in a notice given in the same manner):


 


	
  If
  to Executive:

  	
   

  	
  Christopher
  J. Murphy

  
	
   

  	
   

  	
  22108
  Stanford Circle

  
	
   

  	
   

  	
  Elkhorn,
  Nebraska 68022-2272

  
	
   

  	
   

  	
   

  
	
  If to Company:

  	
   

  	
  Kiewit Materials Company

  
	
   

  	
   

  	
  3555
  Farnam Street

  
	
   

  	
   

  	
  Omaha,
  Nebraska 68131

  
	
   

  	
   

  	
  Attention:
  President

  
	
   

  	
   

  	
  Telefax:
  402.536.3607

  



 


12

















 


Any such notices shall be deemed to be given on the date personally
delivered or sent by facsimile transmission or such return receipt is issued or
the day after if sent by overnight courier.


 


14.  Severability. 
Whenever possible, each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law, in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein. If any court determines that any provision of this
Agreement is unenforceable and therefore acts to reduce the scope or duration
of such provision, the provision in its reduced form, shall then be
enforceable.


 


15.  Breach;
Waiver of Breach; Specific Performance.  If
either party hereto breaches its obligations under this Agreement, the
non-breaching party shall be entitled to pursue all remedies available at law
or in equity for such breach.  The
waiver by one party hereto of a breach of any provision of this Agreement by
the other party shall not operate or be construed as a waiver of any other
breach of such other party. Each party (and intended third-party beneficiaries)
hereto shall be entitled to enforce its rights in relation to any breach by the
other party of any provision of this Agreement and to exercise all other rights
existing in its favor.  The parties
hereto agree and acknowledge that Company would be irreparably injured by a
violation of Sections 8 through 10 of this Agreement, that the provisions of
such sections are reasonable, that Company could not adequately be compensated
in monetary damages, in light of the sensitivity of the non-public information
of Company to which Executive will be exposed, and that Company may apply to
any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief, including temporary restraining orders, preliminary
injunctions and permanent injunctions in order to enforce or prevent any
violations of such provisions of this Agreement.


 


16.  Assignment;
Third Parties.  Subject to the provisions of Section 12,
neither Executive nor Company may assign, transfer, pledge, hypothecate,
encumber or otherwise dispose of this Agreement or any of his or its respective
rights or obligations hereunder, without the prior written consent of the
other, which shall not be unreasonably withheld. The personal representative of
Executive (after his Death) is an intended third-party beneficiary of this
Agreement, and may enforce the obligations of Company, and exercise the rights
of Executive, hereunder after the Death of Executive, all of which obligations
and rights (as relevant) shall survive. All payments which are required to be
paid to Executive under this Agreement and which accrue after the date of his
death shall be paid when due to the personal representative of his estate.


 


17.  Amendment;
Entire Agreement.  This Agreement may be changed,
modified or amended only by a written document signed by both parties hereto
which refers specifically to this Section 17. 
Except with respect to the Indemnification Agreement, this Agreement
constitutes the entire agreement between the parties hereto


 


13

















 


concerning the subject matter hereof and supersedes in its entirety all
prior and contemporaneous agreements, if any, between the parties thereto. The
enforceability of this Agreement shall not cease or otherwise be adversely
affected by the termination of Executive’s employment with Company.


 


18.  Choice of
Law; Litigation.
This Agreement shall be governed by, construed, applied and enforced in
accordance with, the laws of the State of Arizona. In the event that any party
to this Agreement commences any litigation, proceeding or other legal action in
connection with or relating to this Agreement, any related agreement or any
matters described or contemplated herein or therein, the parties hereto hereby
agree (1) under all circumstances absolutely and irrevocably to institute any
litigation, proceeding or other legal action in a court of competent jurisdiction
located within the State of Arizona, whether a state or federal court; (2) that
in the event of any such litigation, proceeding or action, such parties will
consent and submit to the personal jurisdiction of any such court described in
clause (1) of this Section 18 and to service of process upon them in accordance
with the rules and statutes governing service of process (it being understood
that nothing in this section shall be deemed to prevent any party from seeking
to remove any action to a federal court in the State of Arizona); (3) to waive
to the full extent permitted by law any objection that they may now or
hereafter have to the venue of any such litigation, proceeding or action in any
such court or that any such litigation, proceeding or action was brought in any
inconvenient forum; (4) to designate, appoint and direct an authorized agent to
receive on its behalf service of any and all process and documents in any legal
proceeding in the State of Arizona, or as an alternative method of service, to
service of process in any legal proceeding by mailing of copies thereof to such
party at its address set forth herein for communications to such party; (5)
that any service made as provided herein shall be effective and binding service
in every respect; (6) if Executive prevails in such litigation, and if and to
the extent that the same is permitted by law, then Executive shall be entitled
to reimbursement of his reasonable legal fees and expenses of litigation
incurred in connection therewith; and (7) that nothing herein shall affect the
rights of any party to effect service of process in any other manner permitted
by law.


 


19.  Further Action. 
Executive and Company hereby agree to perform any further acts, and to
execute and deliver any additional documents, which may be reasonably required
so as to effect, memorialize or carry out the provisions of this Agreement.


 


20.  Intention of the Parties.  This
Agreement is being executed in connection with a concurrent determination by
the Board of Directors that Company should pursue a Change in Control
transaction.  The Board of Directors has
also determined that Executive’s continued employment with, and efforts on
behalf of, Company respecting continuing operations and pursuit of a Change in
Control transaction are essential and of significant value to the Company.  To assure the same, Company is executing
this Agreement with Executive and similar agreements with other executives
whose retention and efforts are similarly important. Accordingly, the parties
hereto hereby acknowledge and agree that the provisions of this Agreement shall
be liberally construed in favor of Executive and so as to benefit him, to the
maximum extent and, without limiting the


 


14

















 


generality of the foregoing, so as to provide to him assured and
significant compensation, severance and other benefits in the event of the
termination of the Term of Employment hereunder prior to the end of the Trigger
Period. All provisions of this Agreement shall be construed in accordance with
the foregoing.


 


21.  Payment
Obligations Absolute. Company acknowledges that its obligations during and after the Term of
Employment to pay and provide to Executive the compensation, severance and
other benefits provided for herein shall be absolute and unconditional and
shall not be affected by any circumstances whatsoever, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
Company may claim against Executive or anyone else. All amounts payable by
Company to Executive hereunder shall be paid without notice or demand. Each and
every payment made hereunder by Company shall be final, and Company shall not
seek to recover all or any part of such payment from Executive, or from
whomsoever may be entitled thereto, for any reason whatsoever.  If Company shall fail to pay when due any
payment (including the Termination Payment) required by the provisions of this
Agreement, then from and after the due date thereof, the unpaid amount of such
payment shall thereafter, and until paid, bear interest at an annual rate of
interest equal to 400 basis points in excess of the Prime Rate published each
day in the Money Rates section of The Wall Street Journal, adjusted
daily (or in the absence of such publication, then such rate shall be
determined as last provided for therein).


 


22.  Mutual Releases. Except as set forth in the last sentence of
this Section, Executive hereby releases Company from any and all claims or
causes of action which Executive may now have or claim against Company arising
out of Executive’s employment with Company. Except as set forth in the last
sentence of this Section, Company hereby releases Executive from any and all
claims or causes of action which Company may now have or claim against
Executive arising out of Executive’s employment with Company.  The preceding two sentences shall not relate
to, cover or release any claims or causes of action which either Executive or
Company may have or claim against the other which arise under the provisions of
this Agreement or the Indemnification Agreement.


 


23.  Revision. This Executive Employment Agreement Revised
July 8, 2002, is a revision of,
and replaces and supercedes in its entirety, the certain Executive Employment
Agreement executed by and between Executive and Company dated for reference
purposes April 19, 2002.


 


24.  Reference Date. This Agreement shall be dated for reference
purposes July 8, 2002.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Christopher J. Murphy

  
	
   

  	
  Christopher J. Murphy

  



 


15

















 


	
   

  	
  KIEWIT MATERIALS COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth E. Stinson

  
	
   

  	
   

  	
  Kenneth E. Stinson, Chairman

  



 


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