SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
Kiewit Plaza, Omaha, Nebraska 68131
(Address of principal executive offices) (Zip Code)
PETER KIEWIT SONS', INC.
EMPLOYEE OWNERSHIP PLAN
(Full title of the Plan)
Michael F. Norton, Esq.
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
(402) 342-2052
(Name, address and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Maximum Registration
to be Offering Price Aggregate Fee
Registered Per Share Offering Price
1998 Series $4,730,000 102.5% $4,848,250 $1,430.23
Convertible
Debentures
due October
31, 2008
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information
required by Item 1 of this Form S-8 and the statement
of availability of information of Peter Kiewit Sons',
Inc. (the "Company" or the "Registrant"), and other
information required by Item 2 of this Form S-8 will
be sent or given to employees as specified by Rule 428
under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with Rule 428 and
the requirements of Part I of Form S-8, such documents
are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. The
Company shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon
request, the Company shall furnish to the Commission
or its staff a copy of any or all of the documents
included in such file.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by
Reference.
The following documents filed with the Commission
by the Company are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for
the fiscal year ended December 27, 1997.
(b) All other reports filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since December 27, 1997,
including the Company's Current Report on Form 8-K
dated March 27, 1998 (filed with the Commission on
April 13, 1998, as amended on Form 8-K/A filed with the
Commission on May 1, 1998), Quarterly Report on Form
10-Q dated May 14, 1998 and Quarterly Report on Form
10-Q dated August 14, 1998.
(c) The description of the Company's $.01 par
value common stock ("Common Stock") contained in the
Company's Registration Statement on Form S-4 (File No.
333-34627) as filed with the Commission under the
Securities Act on August 29, 1997, amended by
Amendment No. 1 to the Registration Statement on Form
S-4 filed on October 10, 1997, Amendment No. 2 to the
Registration Statement on Form S-4 filed on November
6, 1997 and Amendment No. 3 to the Registration
Statement on Form S-4 filed on November 10, 1997.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered
have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Common Stock
The description of the Company's Common Stock is
incorporated by reference. See Item 3(c) above.
Debentures
The 1998 Series Convertible Debentures ("1998
Debentures") will be issued in fully registered form
under an Indenture dated July 1, 1986, as amended
pursuant to a First Supplemental Indenture dated as of
March 31, 1998 (collectively, the "Indenture"). The
trustee under the Indenture is U.S. Bank National
Association (the "Trustee"). The Indenture does not
limit the aggregate principal amount of debentures
which may be issued and provides that debentures may be
issued from time to time in one or more series. The
registered principal amount of the 1998 Debentures is
$4,730,000.
The 1998 Debentures will be issued on November 1,
1998, and will bear interest payable annually on
November 1 of each year and on the maturity date at the
rate of 7.35% per annum. The 1998 Debentures mature on
October 31, 2008. If the 1998 Debentures are converted
into the Company's Common Stock (see "Conversion
Rights" below), interest ceases to accrue on June 30,
2003. The 1998 Debentures will be unsecured obligations
of the Company, and the holders thereof will rank
equally with other unsecured creditors of the Company
in bankruptcy, including the holders of any other
series of debentures. The 1998 Debentures will be
issued only in registered form, without coupons, in
denominations of $1,000 or any integral multiple
thereof. The purchaser will be required to pay a
premium of $25 for each $1,000 in principal amount of
the 1998 Debentures purchased.
The Company currently has outstanding Convertible
Debentures of the 1997 Series in the aggregate
principal amount of $3,580,000. These debentures were
also issued under the Indenture, which is "qualified"
under the Trust Indenture Act of 1939.
The terms of the 1998 Debentures include those
stated under the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act as in
effect on the date of the Indenture. Holders of the
1998 Debentures are referred to the Trust Indenture Act
of 1939 and the Indenture, the form of which is
incorporated by reference into this Registration
Statement, for a complete statement of those terms. The
following is a summary of those terms and the terms of
the repurchase agreements to be executed by the 1998
Debenture holders.
Conversion Rights
Debenture holders may convert 1998 Debentures into
the Company's Common Stock from October 1, 2003 through
October 31, 2003. No other conversion period is
provided for, and if the holder does not convert to
Common Stock during this period, the conversion right
is lost. The entire principal amount (no partial
conversions are permitted) of a 1998 Debenture is
convertible into whole shares of stock at a conversion
price of $50.40 (less the amount of any dividend
declared during 1998 after the date of this
Registration Statement and prior to November 1, 1998)
per share, the Formula Price of Common Stock as of
November 1, 1998, the date of issuance of the 1998
Debentures. A cash payment by the debenture holder,
determined with reference to the Formula Price of the
Common Stock on the date of conversion, is required
where necessary to avoid the issuance of fractional
shares. The conversion right is conditioned upon the
execution of a repurchase agreement pertaining to the
Common Stock acquired by means of the conversion. The
conversion rights will be adjusted to reflect stock
splits, stock dividends, stock reclassifications or
certain corporate reorganizations between the date of
purchase of the 1998 Debentures and the date of
conversion.
Ownership and Transfer Restrictions
Debentures are offered by the Company to employees
who the Board of Directors and management determine
have contributed significantly to the growth and
performance of the Company. Sales of the debentures are
conditioned upon the execution of a repurchase
agreement under which the purchaser is generally
restricted from transferring the debentures except to
the Company. The Company must purchase any debentures
offered to it by debenture holders. The repurchase
agreement also provides that the debentures must be
sold back to the Company upon the death or retirement
of the purchaser of the debenture or the termination of
his employment with the Company. In any of the above-
mentioned instances, the Company will purchase the
debentures at a price equal to the principal amount
thereof, together with accrued interest from the last
interest payment date to the date of such purchase at
the stated rate. No payment is made by the Company with
respect to the original bond premium. In the event the
Company is offered some but not all, of a debenture
holder's debentures, the Company may purchase all of
such holder's debentures.
Redemption
Upon not less than ten (10) days' written notice,
the Company may, at its option, redeem all (but not
less than all) of the debentures of any given series at
the principal amount thereof, together with accrued
interest from the last interest payment date to the
date fixed for redemption at the stated rate. No
payment is made by the Company with respect to the
original bond premium. The Company may not redeem
debentures of any series during the one-month
conversion period applicable to that series.
Modification of Indenture
The Indenture permits modification or amendment
thereof with the consent of the holders of not less
than two-thirds in principal amount of each series of
debentures, but no modification of the terms of
payment, conversion rights, or the percentage required
for modification will be effective against any
debenture holder without his consent.
Events of Default and Withholding of Notice Thereof to
Debenture Holders
The Indenture provides for the following Events of
Default with respect to each series of the debentures:
(i) failure to pay interest upon any of the debentures
of such series when due, continued for a period of
sixty (60) days and (ii) failure to pay principal of
the debentures of such series when due, continued for a
period of sixty (60) days.
The Trustee, within ninety (90) days after the
occurrence of a default with respect to a particular
series of debentures, is to give the holders of
debentures of such series notice of all defaults known
to the Trustee, unless cured prior to the giving of
such notice, provided that, except in the case of
default in the payment of principal or interest on any
of the debentures of such series, the Trustee may
withhold such notice if and so long as it in good faith
determines that the withholding of such notice is in
the interest of the holders of debentures of such
series.
Upon the happening and during the continuance of a
default with respect to a particular series of
debentures, the Trustee may declare the principal of
all the debentures of such series and the interest
accrued thereon due and payable, but if the default is
cured, the holders of a majority of such debentures may
waive all defaults and rescind such declaration.
Subject to the provisions of the Indenture relating to
the duties of the Trustee in case any such default
shall have occurred and be continuing, the Trustee will
be under no obligation to exercise any of its rights or
powers at the request, order or direction of any of the
debenture holders unless they shall have offered to the
Trustee reasonable security or indemnity. A majority of
the holders of outstanding debentures of such series
will have the right to direct the time, method, and
place of conducting any proceeding for exercising any
remedy available to the Trustee with respect to the
debentures of such series.
The Trustee
The Company maintains a demand deposit account and
conducts routine banking business with the Trustee. The
Indenture contains limitations on the right of the
Trustee, as a creditor of the Company under other
instruments, to obtain payment of claims in specified
cases, or to realize on certain property received in
respect of any such claim as security or otherwise.
Authentication and Delivery
The debentures may be authenticated and delivered
upon the written order of the Company without any
further corporate action.
Satisfaction and Discharge of Indenture
The Indenture may be discharged upon payment or
redemption of all of the debentures or upon deposit
with the Trustee of funds sufficient therefor.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered pursuant
to this Registration Statement has been passed upon for
the Company by Michael F. Norton. Mr. Norton, Corporate
Counsel, is an employee of the Company. Mr. Norton owns
shares of the Company's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law (the "DGCL") empowers a Delaware corporation to
indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of such corporation) by reason of the fact that such
person is or was a director, officer, employee or
agent of another corporation or enterprise. A
corporation may, in advance of the final disposition
of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the
expenses (including attorney's fees) incurred by an
officer, director, employee or agent in defending such
action, provided that the director or officer
undertakes to repay such amount if it shall ultimately
be determined that he or she is not entitled to be
indemnified by the corporation. A corporation may
indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such
person in connection with such action, suit or
proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was
unlawful.
A Delaware corporation may indemnify officers and
directors in an action by or in the right of the
corporation to procure a judgement in its favor under
the same conditions, except that no indemnification is
permitted without judicial approval if the officer or
director is adjudicated to be liable to the
corporation. Where an officer or director is
successful on the merits or otherwise in the defense
of any action referred to above, the corporation must
indemnify him or her against the expenses (including
attorneys' fees) which he or she actually and
reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive
of any other rights to which an officer or director
may be entitled under any corporation's by-law,
agreement, vote or otherwise.
In accordance with Section 145 of the DGCL,
Article Sixth of the Company's Restated Certificate of
Incorporation ("Certificate") and Section 51 of the
Company's Amended and Restated By-Laws ("By-Laws")
provide that the Company shall indemnify each person
who is or was a director, officer or employee of the
Company (including the heirs, executors,
administrators or estate of such person) or is or was
serving at the request of the Company as a director,
officer or employee of another corporation,
partnership, joint venture, trust or other enterprise,
to the fullest extent permitted under subsections
145(a), (b) and (c) of the DGCL or any successor
statute. The indemnification provided by the
Certificate and the By-Laws shall not be deemed
exclusive of any other rights to which any of those
seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise,
both as to action in such person's official capacity
and as to action in another capacity while holding
such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 145 of the DGCL also empowers a Delaware
corporation to purchase and maintain insurance on
behalf of its officers and directors against any
liability asserted against them incurred while acting
in such capacities or arising out of their status as
such. The Company does maintain such insurance.
Article Seventh of the Certificate provides that
a director of the Company shall not be personally
liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the
director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of
the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. If the
DGCL is amended further eliminating or limiting the
personal liability of directors, then the liability of
a director of the Company shall be eliminated or
limited to the fullest extent permitted by the DGCL as
so amended.
Item 7. Exemption from Registration Claimed.
No restricted securities are to be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
Exhibits filed as a part of this Registration
Statement are listed below. Exhibits incorporated by
reference are indicated in parentheses.
Exhibit
Number Description
4.1 Restated Certificate of Incorporation (Exhibit
3.1 to the Company's Current Report on Form 8-K
dated March 27, 1998, filed on April 13, 1998).
4.2 Amended and Restated By-laws (Exhibit 3.2 to
the Company's Current Report on Form 8-K dated
March 27, 1998, filed on April 13, 1998).
4.3 Indenture dated as of July 1, 1986, as amended
pursuant to a First Supplemental Indenture
dated as of March 31, 1998.
4.4 Form of Debenture.
4.5 Form of Repurchase Agreement for Convertible
Debentures.
5.1 Opinion of Michael F. Norton, Esq., with
respect to legality of securities being
registered.
23.1 Consent of PriceWaterhouseCoopers
23.2 Consent of Counsel (included in Exhibit 5.1).
99.1 Form T-1 Statement of Eligibility of Trustee.
Item 9. Undertakings.
(a) The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of
the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material
information with respect to the plan of distribution
not previously disclosed in the Registration Statement
or any material change to such information in the
Registration Statement.
provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of
determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by
means of a post-effective amendment any of the
securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby
undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) The undersigned Registrant hereby
undertakes to deliver or cause to be delivered with the
prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security
holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly
report that is specifically incorporated by reference
in the prospectus to provide such interim financial
information.
(d) Insofar as indemnification for
liabilities arising under the Securities Act may be
permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against
such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling
person in connection with the securities being
registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification
by it is against public policy as expressed in the
Securities Act and will be governed by the final
adjudication of issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies it has reasonable
grounds to believe that it meets all the requirements
for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City
of Omaha, State of Nebraska on October 5, 1998.
PETER KIEWIT SONS', INC.
By: /s/ Kenneth E. Stinson
Name: Kenneth E. Stinson
Title: President
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed
below by the following persons in the capacities and on
the date indicated.
Name Title Date
/s/Kenneth E. Stinson Chairman of the Board
Kenneth E. Stinson and President (Principal
Executive Officer)
October 5, 1998
/s/Kenneth M. Jantz Vice President
Kenneth M. Jantz (Principal Financial
Officer) October 5, 1998
/s/Rodney K. Rosenthal Controller
Rodney K. Rosenthal (Principal Accounting
Officer) October 5, 1998
/s/Richard W. Colf Director October 5, 1998
Richard W. Colf
/s/James Q. Crowe Director October 5, 1998
James Q. Crowe
/s/Richard Geary Director October 5, 1998
Richard Geary
/s/Bruce Grewcock Director October 5, 1998
Bruce Grewcock
/s/William L. Grewcock Director October 5, 1998
William L. Grewcock
/s/Tait P. Johnson Director October 5, 1998
Tait P. Johnson
/s/Peter Kiewit, Jr. Director October 5, 1998
Peter Kiewit, Jr.
/s/Allan K. Kirkwood Director October 5, 1998
Allan K. Kirkwood
/s/Walter Scott, Jr. Director October 5, 1998
Walter Scott, Jr.
/s/Thomas C. Stortz Director October 5, 1998
Thomas C. Stortz
/s/George B. Toll, Jr. Director October 5, 1998
George B. Toll, Jr.
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.3 Indenture dated as of July 1, 1986, as amended
pursuant to a First Supplemental Indenture
dated as of March 31, 1998.
4.4 Form of Debenture.
4.5 Form of Repurchase Agreement for Convertible
Debentures.
5.1 Opinion of Michael F. Norton, Esq., with
respect to legality of securities being
registered.
23.1 Consent of PriceWaterhouseCoopers
23.2 Consent of Counsel (included in Exhibit 5.1).
99.1 Form T-1 Statement of Eligibility of Trustee.
EXHIBIT 4.3
PETER KIEWIT SONS', INC.
AND
FIRSTIER BANK N.A. OMAHA, as Trustee
-----------------------
INDENTURE
Dated as of July 1, 1986
-----------------------
PETER KIEWIT SONS', INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of July 1, 1986*
Trust Indenture
Act Section Indenture Section
Section 310 (a) (1) 608
(a) (2) 609
(a) (3) Not Applicable
(a) (4) Not Applicable
(b) 607
609
Section 311 (a) 612(a)
(b) 612(b)
(b) (2) 703 (a)(2)
703 (b)
Section 312 (a) 701
702 (a)
(b) 702 (b)
(c) 702 (c)
Section 313 (a) 703 (a)
(b) 703 (b)
(c) 703 (a), 703 (b)
(d) 703 (c)
Section 314 (a) 704
(b) Not Applicable
(c) (1) 102
(c) (2) 102
(c) (3) Not Applicable
(d) Not Applicable
(e) 102
Section 315 (a) 601 (a)
(b) 602
703 (a)(6)
(c) 601 (b)
(d) 601 (c)
(d) (1) 601 (a) (1)
(d) (2) 601 (c) (2)
(d) (3) 601 (c) (3)
(e) 512
Section 316 (a) (1) (A) 502
510
(a) (1) (B) 511
(a) (2) Not Applicable
(b) 508
Section 317 (a) (1) 503
(a) (2) 504
(b) 902
Section 318 (a) 106
*This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
TABLE OF CONTENTS*
Page
PARTIES Cover
RECITALS OF THE COMPANY i
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.Definitions:
Act 1
Affiliate; control 2
Board of Directors 2
Board Resolution 2
Business Day 2
Class C Stock 2
Commission 2
Company 2
Company Request or Company Order 2
Conversion Interest Termination Date 2
Conversion Period 2
Corporate Trust Office 2
Corporation 2
Debenture Repurchase Agreement 3
Event of Default 3
Holder 3
Indenture 3
Interest Payment Date 3
Maturity 3
Officers' Certificate 3
Opinion of Counsel 3
Outstanding 3
Paying Agent 4
Person 4
Place of Payment 4
Prior Indentures 4
Redemption Date 4
Redemption Price 4
Regular Record Date 4
Responsible Officer 4
Securities 4
Security Register and Security Registrar 4
Stated Maturity 4
Stock Repurchase Agreement 4
Trustee 5
Trust Indenture Act 5
Vice President 5
*This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
Page
SECTION 102. Compliance Certificates and Opinions 5
SECTION 103. Acts of Holders 5
SECTION 104. Notices, Etc., to Trustee and Company 6
SECTION 105. Notice to Holders; Waiver 6
SECTION 106. Conflict with Trust Indenture Act 7
SECTION 107. Effect of Headings and Table of Contents 7
SECTION 108. Successors and Assigns 7
SECTION 109. Separability Clause 7
SECTION 110. Benefits of Indenture 7
SECTION 111. Governing Law 7
SECTION 112. Legal Holidays 7
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally 8
SECTION 202. Forms of Security 8
SECTION 203. Form of Trustee's Certificate
of Authentication 11
SECTION 204. Form of Conversion Notice 11
SECTION 205. Form of Legend on Face of Security 11
Page
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 11
SECTION 302. Denominations 13
SECTION 303. Execution, Authentication, Delivery
and Dating 13
SECTION 304. Transfer Restrictions 14
SECTION 305. Registration and Registration
of Transfer 14
SECTION 306. Payment of Interest; Interest Rights
Preserved 15
SECTION 307. Persons Deemed Owners 15
SECTION 308. Cancellation 15
SECTION 309. Computation of Interest 15
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture 15
SECTION 402. Application of Trust Money 16
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 17
SECTION 502. Acceleration of Maturity; Rescission
and Annulment 17
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee 18
SECTION 504. Trustee May File Proofs of Claim 18
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities 19
SECTION 506. Application of Money Collected 19
SECTION 507. Limitation on Suits 19
Page
SECTION 508. Unconditional Right of Holders
to Receive Principal and Interest and
to Convert 20
SECTION 509. Restoration of Rights and Remedies 20
SECTION 510. Control by Holders 20
SECTION 511. Waiver of Past Defaults 21
SECTION 512. Undertaking for Costs 21
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities 21
SECTION 602. Notice of Defaults 22
SECTION 603. Certain Rights of Trustee 23
SECTION 604. Not Responsible for Recitals or
Issuance of Securities 23
SECTION 605. Money Held in Trust 24
SECTION 606. Compensation 24
SECTION 607. Disqualification; Conflicting Interest 24
(a) Elimination of Conflicting Interest
or Resignation 24
(b) Notice of Failure to Eliminate
Conflicting Interest or Resign 24
(c) "Conflicting Interest" Defined 24
(d) Definitions of Certain Terms Used
in This Section 26
(e) Calculation of Percentages of
Securities 27
SECTION 608. Corporate Trustee Required; Eligibility 28
SECTION 609. Resignation and Removal; Appointment
of Successor 28
Page
SECTION 610. Acceptance of Appointment of Successor 29
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business 30
SECTION 612. Preferential Collection of Claims
Against Company 30
(a) Segregation and Apportionment of
Certain Collections by Trustee,
Certain Exceptions 30
(b) Certain Creditor Relationships
Excluded from Segregation and
Apportionment 32
(c) Definitions of Certain Terms Used
in This Section 32
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders 33
SECTION 702. Preservation of Information; Communications
to Holders 33
SECTION 703. Reports by Trustee 34
SECTION 704. Reports by Company 35
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent
of Holders 36
SECTION 802. Supplemental Indentures with Consent
of Holders 37
SECTION 803. Execution of Supplemental Indentures 38
SECTION 804. Effect of Supplemental Indentures 38
SECTION 805. Conformity with Trust Indenture Act 38
Page
SECTION 806. Reference in Securities to Supplemental
Indentures 38
ARTICLE NINE
COVENANTS
SECTION 901. Payment of Principal and Interest 39
SECTION 902. Money for Securities Payments to Be
Held in Trust 39
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001.Applicability of Article 40
SECTION 1002.Election to Redeem 40
SECTION 1003.Notice of Redemption 40
SECTION 1004.Deposit of Redemption Price 40
SECTION 1005.Securities Payable on Redemption Date 41
ARTICLE ELEVEN
PRIOR INDENTURES
SECTION 1101.Description of Prior Indentures 41
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201.Right of Conversion 41
SECTION 1202.Issuance of Class C Stock; Time of
Conversion 42
SECTION 1203.Adjustments in Respect of Interest 42
SECTION 1204.Adjustment of Conversion Rate 42
SECTION 1205.No Fractional Shares 42
SECTION 1206.Trustee Not Liable 43
Page
ARTICLE THIRTEEN
PRIORITY OF SECURITIES
SECTION 1301.Party With All Unsecured Indebtedness 43
SECTION 1302.Payment Over of Proceeds Upon
Dissolution, Etc. 44
SECTION 1303.Reliance on Judicial Order or Certification
Of Liquidating Agent 44
TESTIMONIUM 45
SIGNATURES AND SEALS 45
ACKNOWLEDGMENTS 45
INDENTURE, dated as of July 1, 1986, between
PETER KIEWIT SONS', INC., a corporation duly organized
and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal
office at 1000 Kiewit Plaza, Omaha, Nebraska 68131,
and FIRSTIER BANK N.A. OMAHA, a national banking
association duly organized and existing under the laws
of the United States of America, having its Corporate
Trust Office at 1700 Farnam Street, Omaha, Nebraska
68102, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance
from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as
in this Indenture provided.
All things necessary to make this Indenture a
valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it
is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities
or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include
the plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with
generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term
"generally accepted accounting principles" with
respect to any computation required or permitted
hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
and
(4) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to this
Indenture as whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Six, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 103.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or
controlled by or under direct or indirect common
control with such specified Person. For the purposes
of this definition, "control" when used with respect
to any specified Person means the power to direct the
management and policies of such Person, directly or
indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of
directors of the Company or any duly authorized
committee of that board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary
of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the
date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place
of Payment, means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are
authorized or obligated by law to close.
"Class C Stock" means (i) the class of common stock
issued by the Company which is designated "Class C
Stock", which has general voting rights, which has no
preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up the Company and
which is not subject to redemption by the Company, or
(ii) any other class of common stock issued by the
Company which is designated in a Board Resolution or
supplemental indenture establishing the terms of a
series of Securities pursuant to Section 301 as the
class of stock into which the Securities of such
series shall be convertible.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such
Commission is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company"
in the first paragraph of this instrument and its
successors and assigns.
"Company Request" or "Company Order" means a
written request or order signed in the name of the
Company by its Chairman of the Board, its President or
a Vice President or its Stock Registrar, and by its
Treasurer, an Assistant Treasurer its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Interest Termination Date" means June
30th in the year which is five years after the date of
issuance of a series of Securities, or any other date
specified in a Board Resolution or supplemental
indenture establishing the terms of such series
pursuant to Section 301.
"Conversion Period" means the period beginning on
October lst and ending on October 31st in the year
which is five years after the date of issuance of a
series of Securities, or any other period specified in
a Board Resolution or supplemental indenture
establishing the terms of such series pursuant to
Section 301.
"Corporate Trust Office" means the office of the
Trustee in Omaha, Nebraska, at which at any particular
time its corporate trust business shall be principally
administered, and which at the date hereof is located
at 1700 Farnam Street, Omaha, Nebraska 68102.
"Corporation" includes corporations, associations,
companies, joint-stock companies and business trusts.
"Debenture Repurchase Agreement" means each agreement
between a Holder and the Company prohibiting such
Holder from transferring his Security or Securities to
any person other than the Company (other than in
connection with certain pledges therein specified),
and providing that such Holder must sell his
Securities to the Company upon his death, retirement
or termination from the employment of the Company.
"Event of Default" has the meaning specified in
Section 501.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally
executed or as it may from time to time be
supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the
terms of particular series of Securities established
as contemplated by Section 301.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an
installment of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security
or an installment of principal becomes due and payable
as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel to the Company, and who
shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities
of any series, means, as of the date of determination,
all such Securities theretofore authenticated and
delivered under this Indenture except:
(i) Any such Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(ii) Any such Securities for whose payment or
redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee been made; and
(iii) Any such Securities in lieu of which other
Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of
the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver,
only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or interest on any
Securities behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, unincorporated
organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the
Securities of any series, means the principal office
of the Company in Omaha, Nebraska and such other place
or places where principal of and interest on the
Securities of that series are payable as specified in
a Board Resolution or supplemental indenture
establishing the terms of such series pursuant to ion
301.
"Prior Indentures" has the meaning specified in
Section 1101.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it
is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series
means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of
the board of directors, the chairman or any vice-
chairman of the executive committee of the board of
directors, the chairman of the trust committee, the
president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the
controller or any assistant controller or any other
officer of the Trustee customarily performing
functions similar to those performed by any of the
above designated officers and also means, with respect
to a particular corporate trust matter, any other
officer to whom such matter is referred because of his
knowledge of and familiarity with the particular
subject.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means
any Securities authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have
the respective meanings specified in Section 305.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security as the fixed date on which the principal of
such Security or such installment of principal or
interest is due and payable.
"Stock Repurchase Agreement" means each agreement
between the Company and a holder of Class C Stock
prohibiting such holder from transferring such Class C
Stock to any person other than the Company or certain
authorized transferees and pledges, and providing that
such holder must sell such Class C Stock to the
Company upon his death, retirement or termination from
the employment of the Company, and upon other events
specified therein.
"Trustee" means the Person named as the "Trustee"
in the first paragraph of this instrument until a
successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or in each Person who
is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this
instrument was executed, except as provided in Section
805.
"Vice President", when used with respect to the
Company or the Trustee, means any vice president,
whether or not designated by a number or a word or
words added before or after the title "vice
president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this
Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture
relating to the proposed action have been complied
with and in Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the
case of any such application or request as to which
the furnishing of such documents is specifically
required by any provision of this Indenture relating
to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to
compliance with a condition or covenant provided for
in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or
investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such
action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The ownership of Securities shall be proved by
the Security Register.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of
any Security shall bind every future Holder of the
same Security and the Holder of every Security issued
upon the registration transfer thereof or in exchange
therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 104. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument.
Attention: President, or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 105. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as
it appears in the Security Register, not later than
the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for
notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice,
either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such
notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for
every purpose hereunder.
SECTION 106. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be
included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall
control.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the
curities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the
remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State
of Delaware.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security
shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or
principal need not be made at such Place of Payment on
such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption
Date or Stated Maturity, as the case be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in
substantially the form set forth in this Article, or
in such other form as shall be established by or
pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other
marks of identification and such legends or
endorsements placed thereon as may, consistently
herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such
Securities. If the form of Securities of any series is
established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to
the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall in
substantially the form set forth in this Article.
The legend appearing on the face of the Securities
shall be in substantially the form set forth in this
Article
The definitive Securities shall be typed, printed,
lithographed or engraved, or produced by any
combination of these methods, all as determined by the
officers executing such Securities, as evidenced by
their execution of such Securities.
SECTION 202. Form of Security.
PETER KIEWIT SONS', INC.
A Delaware Corporation
Registered Debenture No. ----- $---------
- ----- Convertible Debenture Due ------, --- 19-
PETER KIEWIT SONS', INC., a corporation organized
and existing under the laws of the State of Delaware,
and having its principal place of business in the City
of Omaha, Nebraska (hereinafter called the
Corporation), for value received hereby promises to
pay to ------------ or registered assigns (hereinafter
called the Debentureholder) on --------, --- 19----,
the principal sum of ------------ ($ -----) Dollars.
This debenture is one of a 19--- issue of
registered convertible debentures of the Corporation,
due ----------, 19----, unless previously redeemed or
converted, limited to the aggregate principal amount
of ---------- Thousand ($ -------) Dollars, all issued
or to be issued pursuant -------- to an indenture
(hereinafter called the Indenture), dated as of July
1, 1986, executed and delivered by the Corporation to
FirsTier Bank N.A. Omaha, a national banking
association organized and existing under the laws of
the United States, as Trustee (hereinafter referred to
as Trustee). Reference is hereby made to the
Indenture, and all indentures supplemental thereto,
for a description of the rights, limitations,
obligations and immunities of the Corporation, the
holders of the debentures and the Trustee.
(1) TYPE OF PAYMENT: Payment of interest and
principal shall be in any coin or currency of the
United States of America which at the time of payment
shall be legal tender for the payment of public or
private debts.
(2) INTEREST: Except as hereinafter provided, the
Corporation promises to pay to the registered owner
hereof or his registered assigns, interest on the
principal sum as of ------- ----, 19-- and each
succeeding ---------- -----, and at maturity, at the
rate of --- percent per annum until the Corporation's
obligation with respect to the payment of the
principal amount shall have been discharged. Interest
shall accrue upon this debenture until the date of
redemption or maturity, whichever of these dates shall
first occur. In the event of conversion as provided in
paragraph (7) hereof, interest shall cease running on
the principal amount of the debenture on ------------
- --------, 19--. Interest on this debenture shall be
paid annually on the ------------- immediately
following the twelve months in which such interest was
earned.
(3) PLACE OF PAYMENT: The principal and interest on
this debenture shall be payable at the office of the
Corporation at Omaha, Nebraska; provided, however,
that at the option of the Company, payment of interest
may be made by check mailed to the address of the
registered owner of this debenture as such address
shall appear in the security register of the
Corporation.
(4) DEFAULT: This debenture shall be deemed to be in
default whenever the principal sum and/or interest
becomes payable and remains unpaid for a period of
sixty (60) days.
(5) REDEMPTION: This debenture is subject to
redemption, at the option of the Corporation, at any
time prior the date of maturity at its principal
amount plus all accrued and unpaid interest to the
date of redemption; provided, however, that the entire
series is redeemed. This debenture may not be redeemed
during the thirty-one (31) day conversion period
provided for in paragraph (7) hereof. Redemption shall
be preceded by notice thereof, given to the registered
holder by registered mail no later than ten (10) days
preceding the date of redemption.
(6) TRANSFER: The debenture may be transferred by
the registered holder at the principal office of the
Corporation in Omaha, Nebraska, on registry books kept
for such purpose at such office, upon surrender and
cancellation of this debenture, and the payment of
applicable charges. The Corporation and the Trustee
may treat the registered owner of this debenture as
the absolute owner for all purposes.
(7) CONVERSION: (a) This debenture is convertible
into Class C Stock of the Corporation on the following
basis: the debenture is not convertible, in whole or
in part, for the period commencing on the date of
issuance and ending on -------- ----, 19---. During
the period commencing on -------- ----, 19--- and
ending on -------- ---, 19--, the Debentureholder may
convert the principal amount of the debenture plus a
cash payment of ------- ($ ------) Dollars, into -----
- --------- (-------) shares of Class C Stock of the
Corporation. During the period commencing on--------,-
- --- 19--- and ending on--------- ---, 19----, the
date of maturity, the debenture is not convertible, in
whole or in part. The conversion privilege shall be
deemed exercised by submission of the debenture with a
written request for conversion during the applicable
thirty-one (31) day period at the principal office of
the Corporation. The Corporation shall thereafter,
within a sixty (60) day period, issue the Class C
Stock of the Corporation. As a condition precedent to
the rights of conversion granted in this paragraph,
the Debentureholder agrees to execute the applicable
Peter Kiewit Sons', Inc. Stock Repurchase Agreement.
(b) In case the Corporation shall change the stock
issuable upon conversion into the same or different
number of new shares of the same or of any other class
or classes, the Debentureholder, upon conversion,
shall be entitled to receive, in lieu of the old stock
which he would have been entitled to receive but for
such change, a number of shares of the new stock
equivalent to the number of shares of new stock that
would have been issued to him in exchange for such
number of shares of old stock which he would have been
entitled to receive if the conversion privilege had
been exercisable and exercised immediately prior to
such change.
(c) In case at any time or from time to time the
Corporation shall declare and pay on or in respect of
the class of stock issuable upon conversion, any
dividend of shares of stock of any class or classes,
the Debentureholder, upon exercising the conversion
privilege, after the date of record of the holders of
stock to whom such stock dividend is payable, shall be
entitled to receive the shares of stock theretofore
issuable upon conversion, together with the dividend
stock which would have been issuable if the conversion
privilege had been exercisable and exercised
immediately prior to the record date.
(d) The Corporation covenants and agrees that in case
it shall consolidate or merge with, or shall sell its
property as an entirety, or substantially as an
entirety, to any other corporation, proper provision
will be made as part of the terms of such
consolidation, merger or sale, that the holder of any
convertible debenture will thereafter be entitled to
convert it into the same kind and amount of securities
and any other assets as may be issuable or
distributable by the terms of such consolidation,
merger or sale with respect to the number of shares of
Class C Stock into which this debenture is convertible
at the time of such consolidation, merger or sale;
provided however, that the surviving corporation with
which the Corporation consolidates, merges or sells
its property shall succeed to all of the rights
provided for in this debenture, including the right of
redemption.
(8) SUBORDINATION: In the payment of their claims,
the Debentureholders shall rank equally with all
unsecured creditors of the Corporation holding
unsubordinated debt. All claims of the
Debentureholders against earnings or assets are hereby
made superior to those of stockholders, and the
Corporation agrees that as long as any of its
convertible debentures are outstanding, it will not
pay any dividends on its stock until all liability for
unpaid interest on its debentures has been paid. In
the event of dissolution or liquidation of the
Corporation, the holders of all debentures shall be
entitled to be paid in full, both principal and
interest, before any assets of the Corporation are
distributed to any stockholder.
(9) OWNERSHIP: The Corporation may treat the
registered owner of the debenture as the absolute
owner of this debenture.
(10) LIQUIDATION OF LIABILITY: No recourse shall be
had for the payment of the principal or interest of
this debenture, against any incorporator, stockholder,
officer, or director, past, present, or future, of the
Corporation, all such liability being expressly waived
by the owner of this debenture.
(11) VALIDATION: This debenture shall not be valid
or become obligatory for any purpose until the
certificate of authentication hereon shall have been
signed by the Trustee.
(12) SUPPLEMENTAL INDENTURES: The Corporation may
execute any number of supplemental indentures which
amend the Indenture or modify the rights of
Debentureholders in the manner and in accordance with
the terms specified in the Indenture.
IN WITNESS WHEREOF, Peter Kiewit Sons', Inc. has caused this
debenture to become signed and its corporate seal to be hereunto
affixed by its officers duly authorized thereunto, all as of the
- ----- day of -------, 19----.
ATTEST: PETER KIEWIT SONS', INC
- -------------------------- By --------------------
SECTION 203. Form of Trustee's Certificate of
Authentication.
This is one of the debentures described in the Inden-
ture dated as of July 1, 1986 by and between the
Corporation and FirsTier Bank N.A. Omaha, as Trustee.
SECTION 204. Form of Conversion Notice.
[Date]
Peter Kiewit Sons', Inc.
1000 Kiewit Plaza
Omaha, Nebraska 68131
Gentlemen:
Please accept this as written notice that the
undesigned hereby elects to exercise his right to
convert Peter Kiewit Sons', Inc. ---% Convertible
Debenture No.----- into ----- shares of Peter Kiewit
Sons' Inc. Class C stock.
[If applicable -- By furnishing FirsTier Bank N.A.
Omaha with copy of this notice, I hereby authorize it
to deliver the aforementioned Debenture to you on or
before ------ ---, 19---.]
cc: FirsTier Bank N.A. Omaha
1700 Farnam Street
Omaha, Nebraska 68102
SECTION 205. Form of Legend on Face of Security.
THESE DEBENTURES AND THE TRANSFER THEREOF ARE SUBJECT
TO RESTRICTIONS WHICH ARE STATED IN AN AGREEMENT
ENTITLED "AGREEMENT" WITH RESPECT TO CONVERTIBLE
DEBENTURES OF PETER KIEWIT SONS', INC." BETWEEN PETER
KIEWIT SONS', INC. AND THE DEBENTUREHOLDER (S) WHOSE
NAME(S) APPEAR(S) ON THIS CERTIFICATE.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which be
authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board
Resolution, and set forth in an Officers' Certificate,
or established of one or more indentures supplemental
hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
all other Securities);
(2) any limit upon the aggregate principal amount of
the Securities of the series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and delivered in
lieu of other Securities of the series pursuant to
Section 806.
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, the date or dates from
which such interest shall accrue, the Interest Payment
Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the place or places in addition to Omaha,
Nebraska, if any, where the principal of and interest
on Securities of the series shall be payable;
(6) the period or periods within which, the price or
prices at which, and the terms and conditions upon
which Securities of the series may be redeemed, at the
option up the Company;
(7) if other than June 30th in the year which is five
years after the date of issuance of the Securities of
the series, the Conversion Interest Termination Date;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which
Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
Section 502;
(10) additional restrictions on the ability of a
Holder to transfer the Securities of such series, if
any, other than those set forth herein;
(11) additional Events of Default with respect to
Securities of such series, if any, other than those
set forth herein;
(12) the rate at which Holders of Securities of the
series may convert such Securities into shares of
Class C Stock of the Company pursuant to Article
Twelve hereof, and the Conversion Period if other than
the 31 days beginning on October 1st and ending on
October 31st in the year which is five years after the
date of issuance of such Securities;
(13) if other than Class C Stock, the class of common
stock of the Company into which the Securities of the
series are convertible; and
(14) any other terms of the Securities of such series
(which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one series shall be
substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in such Officers'
Certificate or in any such indenture supplemental
hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary
of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate
setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in
registered form without coupons in such denominations
as shall be specified as contemplated by Section 301.
In the absence of any such provisions with respect to
the Securities of any series the Securities of such
series shall be issuable in denominations of $1,000
and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its President or
one of its Vice Presidents, under its corporate seal
reproduced there on attested by its Secretary or one
of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signature
of individuals who were at the time of signature the
proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the
authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may
deliver Securities of any series executed by the
Company to the Trustee for authentication, together
with a Company Order for the authentication and
delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate
and deliver such Securities. If the form or terms of
the Securities of the series have been established in
or pursuant to one or, Board Resolutions as permitted
by Sections 201 and 301, in authenticating such
Securities, and accepting the additional
responsibilities under this Indenture in relation to
such Securities the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully
protected in relying upon, an Opinion of Counsel
stating:
(a) if the form of such Securities has been
established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution as
permitted by Section 301, that such terms have been
established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its issuance.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a
certificate of authentication substantially in the
form provided for herein executed by the Trustee by
manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only
evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled
to the benefits of this Indenture.
SECTION 304. Transfer Restrictions.
Except as specifically provided in the Debenture
Repurchase Agreement, the execution of which is a
condition precedent to the purchase of the Securities
of any series, no Holder shall give, sell, assign,
pledge, or otherwise transfer any Securities, by any
means, whether voluntary or involuntary, except for
pledges of Securities as collateral for loans in
connection with the ownership of the Securities. Any
Holder may at any time sell his Securities to the
Company in the manner and in accordance with the terms
specified in the Debenture Repurchase Agreement. Upon
termination of the Holder's employment (as defined in
the Debenture Repurchase Agreement) for any reason,
including death, the Holder, the Holder's
representative, or the Holder's estate shall sell all
the Securities owned by the Holder to the Company and
the Company shall purchase all such Securities, all in
accordance with the terms of the Debenture Repurchase
Agreement.
SECTION 305. Registration and Registration of
Transfer.
The Company shall keep a register (the "Security
Register") at its principal office in Omaha, Nebraska
in which, subject to such reasonable regulations as it
may prescribe, the Company the shall provide for the
registration of Securities and of Securities. The
Company shall be "Security Registrar for the purpose
of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any
Security by the Holder thereof pursuant to the terms
of the Debenture Repurchase Agreement and the payment
of applicable charges, the Company shall register the
transfer of the Security in the Security Register.
Such Security shall be cancelled by the Company and
shall no longer be deemed to be Outstanding. The
Company shall not be required to register the transfer
of any Security transferred in violation of the
Debenture Repurchase Agreement.
Every Security presented or surrendered for
registration of transfer shall be endorsed in blank or
accompanied by appropriate transfer powers executed in
blank, and accompanied by such other evidence of
authority as the Company may reasonably require.
SECTION 306. Payment of Interest; Interest Rights
Preserved.
Interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest
Payment Date or at Maturity shall be paid to the
Person in whose name that Security is registered at
the close of business on the Regular Record Date for
such interest.
Interest shall cease running on the Conversion
Interest Termination Date on the principal amount of
any Security which is surrendered for conversion
pursuant to Article Thirteen hereof. If any Security
is surrendered for conversion after the close of
business on any Regular Record Date and on or prior to
the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest
Payment Date), interest on such Security shall be
payable on such Interest Payment Date notwithstanding
such conversion, but only in an amount equal to the
interest accrued to the Conversion Interest
Termination Date, and such interest shall be paid to
the Person in whose name that Security is registered
at the close of business on such Regular Record Date.
SECTION 307. Persons Deemed Owners.
Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as
the owner of such Security for the purpose of
receiving payment of principal of and interest on such
Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the
contrary.
SECTION 308. Cancellation.
All Securities surrendered for payment, redemption,
conversion or registration of transfer shall be
delivered to the Company and shall be cancelled by it.
SECTION 309. Computation of Interest.
Except as otherwise specified as contemplated by Sec-
tion 301 for Securities of any series, interest on the
Securities of each series shall be computed on the
basis of a year of 365 days.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to
further effect (except as to any surviving rights of
conversion or registration of transfer of Securities
herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper
instruments acknowledging satisfaction discharge of
this Indenture, when
1) either
(A) all Securities theretofore authenticated and
delivered (other than Securities for whose payment
money has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from
such trust, as provided in Section 902) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company and the
Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee
as trust funds in trust an amount sufficient to pay
and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an opinion of Counsel, each
stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the
Trustee under Section 606 and, if money shall have
been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of
the Trustee under Section 402 and the last paragraph
of Section 902 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 902, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) the
Trustee may determine, to the Persons entitled
thereto, Of the principal and interest for whose
payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee
pursuant to Section 401 (and held by it or any Paying
for the payment of Securities subsequently converted
shall be returned to the Company upon receipt by the
Trustee on Company Request to such effect.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the
following events (whatever the reason for such Event
of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or
pursuant of any judgment, decree or order of any court
or any order, rule or regulation of any administrative
or governmental body):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and
payable, and continuance of such default for a period
of 60 days; or
(2) default in the payment of the principal of any
Security of that series at its Maturity, and
continuance of such default for a period of 60 days;
or
(3) any other Event of Default provided with respect
to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee may
declare the principal amount of all of the Securities
of that series to be due and payable immediately, by a
notice in writing to the Company and upon any such
declaration such principal amount shall become
immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made
and before a judgment or decree for payment of the
money due has been obtained by the Trustee as
hereinafter in this Article provided the Holders of a
majority in principal amount of the Outstanding
Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such
declaration its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of any Securities of that series
which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such
Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the
principal of Securities of that series which have
become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 512.
No such recission shall affect any subsequent default
or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest becomes due and
payable such default continues for a period of 60
days, or
(2) default is made in the payment of the principal
any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities,
the whole amount hen due and payable on such
Securities for principal and interest, at the rate or
rates prescribed therefor in such Securities and, in
addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of
collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith
such demand, the Trustee, in its own name and as
trustee an express trust, may institute a judicial
proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the
Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of
the Company or any other obligor upon such Securities,
wherever situated.
If any Event of Default with respect to Securities any
series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its
rights and the rights of the Holder of Securities of
such series by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other
obligor upon the Securities or the property of the
Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of
the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue
principal or interest) shall be entitled and
empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of
the Securities and to file such other papers or
documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim
for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and,
in the event that the Trustee consent to the making of
such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the
Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal
or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 606;
SECOND: To the payment of the amounts then due and
unpaid for principal and interest on the Securities in
respect of which or for the benefit of which such
money has been collected, ratably, without preference
or priority of any kind, according to the amounts due
and payable on such Securities for principal and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whoever may
be lawfully entitled to receive the same, or as a
court of competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series
shall have made written request to the Trustee to
institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-
day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more
of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or
prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all
of such Holders.
SECTION 508. Unconditional Right of Holders to
Receive
Principal and Interest and to Convert.
Notwithstanding any other provision in this Indenture
the Holder of any Security shall have the right, which
is absolute and unconditional, to receive payment of
the principal and interest on such Security on the
Stated Maturity or maturities expressed in such
Security (or, in the case of redemption, on the
Redemption Date) and to convert such Security in
accordance with Article Twelve and to institute tit
for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders
shall continue as though such proceeding had been
instituted.
SECTION 510. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the
right to direct the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with
such direction.
SECTION 511. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such
series waive any past default hereunder with respect
to such series and its consequences except a default
(1) in the payment of the principal of or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof
which under Article Eight cannot be modified or
amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose
of this Indenture with respect to the Securities of
such series; but no such waiver shall extend to any
subsequent or other default or impair any right
consequent thereon.
SECTION 512. Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not
apply to any suit instituted by the Company, to any
suit instituted by the Trustee, to any suit instituted
by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit
instituted by any Holder for the enforcement of the
payment of the principal of or interest on any
Security on or after the Stated Maturity or Maturities
expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or
its own willful misconduct, except that
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders
of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in
Section 510, relating to the time, method and place of
conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the
conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any
series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names
and addresses appear in the Security Register, notice
of such default hereunder known to the Trustee, unless
such default shall have been cured or waived;
provided, however, that, except in the case of a
default in the payment of the principal of, or
interest on any Security of such series, the Trustee
shall be protected in withholding such notice if and
so long as the board of directors, the executive
committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in
the interest of the Holders of Securities of such
series. For the purpose of this Section, the term
"default" means any event which is, or after notice
or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in,
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine
and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the
Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an
Officer's Certificate;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall
be entitled to examine the books, records and of the
Company, personally or by agent or attorney, upon ten
days written notice to the Company of its intention to
make such examination; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and
the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of
the Securities. The Trustee shall not be accountable
for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent
required by law. The Trustee shall be under no
liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation.
The Company agrees to pay to the Trustee from time to
time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust).
SECTION 607. Disqualification; Conflicting Interest.
(a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, with
respect to the Securities of any series, it shall,
within 90 days after ascertaining that it has such
conflicting interest, either eliminate such
conflicting interest or resign with respect to the
Securities of that series in the manner and with the
effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to
comply with the provisions of Subsection (a) of this
Section with respect to the Securities of any series,
the Trustee shall, within 10 days after the expiration
of such 90-day period, transmit by mail to all Holders
of Securities of that series, as their names and
addresses appear in the Security Register, notice of
such failure.
(c) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with
respect to the Securities of any series if
(1) the Trustee is trustee under this Indenture with
respect to the Outstanding Securities of any series
other than that series or is trustee under another
indenture under which any other securities, or
certificates of interest or participation in any other
securities, of the Company are outstanding, unless
such other indenture is a collateral trust indenture
under which the only collateral consists of Securities
issued under this Indenture, provided that there shall
be excluded from the operation of this paragraph this
Indenture with respect to the Securities of any series
other than that series and any indenture or indentures
under which other securities, or certificates of
interest or participation in other securities, of the
Company are outstanding, if
(i) this Indenture and such other indenture or
indentures are wholly unsecured and such other
indenture or indentures are either herein specifically
described or hereafter qualified under the Trust
Indenture Act, unless the Commission shall have found
and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that
differences exist between the provisions of this
Indenture with respect to Securities of that series
and one or more other series or the provisions of such
other indenture or indentures which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection
of investors to disqualify the Trustee from acting as
such under this Indenture with respect to the
Securities of that series and such other series or
under such other indenture or indentures, or
(ii) the Company shall have sustained the burden of
proving, on application to the Commission and after
opportunity for hearing thereon, that trusteeship
under this Indenture with respect to the Securities of
that series and such other series or such other
indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary
in the public interest or for the protection of
investors to disqualify the Trustee from acting as
such under this Indenture with respect to the
Securities of that series and such other series or
under such other indenture or indentures;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Securities or an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under
direct or indirect common control with the Company or
an underwriter for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee or representative of the Company, or of an
underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of
underwriting, except that (i) one individual may be a
director or an executive officer, or both, of the
Trustee and a director or an executive officer, or
both, of the Company but may not be at the same time
an executive officer of both the Trustee and the
Company; (ii) if and so long as the number of
directors of the Trustee in office is more than nine,
one additional individual may be a director or an
executive officer, or both, of the Trustee and a
director of the Company; and (iii) the Trustee may be
designated by the Company or by any underwriter for
the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent,
escrow agent or depositary, or in any other similar
capacity, or, subject to the provisions of paragraph
(1) of this Subsection, to act as trustee, whether
under an indenture or otherwise;
(5) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Company or
by any director, partner or executive officer thereof,
or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more
of such persons; or 10% or more of the voting
securities of the Trustee is beneficially owned either
by an underwriter for the Company or by any director,
partner or executive officer thereof, or is
beneficially owned, collectively, by any two or more
such persons;
(6) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined),
(i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company
not including the Securities issued under this
Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or
(ii) 10% or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined),
5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of
the voting securities of, or controls directly or
indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds
as collateral security for an obligation which is in
default (as hereinafter in this Subsection defined),
10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more
of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year
in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar
capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any
person, the beneficial ownership of a specified
percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8)
of this Subsection. As to any such securities of which
the Trustee acquired ownership through becoming
executor, administrator or testamentary trustee of an
estate which included them, the provisions of the
preceding sentence shall not apply, for a period of
two years from the date of such acquisition, to the
extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any
such class of security. Promptly after May 15 in each
calendar year, the Trustee shall make a check of its
holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company
fails to make payment in full of the principal of or
interest on any of the Securities when and as the same
becomes due and payable, and such failure continues
for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any
of the above-mentioned capacities as of the date of
the expiration of such 30-day period, and after such
date, notwithstanding the foregoing provisions of this
paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall
continue, be considered as though beneficially owned
by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection.
The specification of percentages in paragraphs (5) to
(9), inclusive, of this Subsection shall not be
construed as indicating that the ownership of such
percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or
indirect control for the purposes of paragraph (3) or
(7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9)
of this Subsection only, (i) the terms "security" and
"securities" shall include only such securities as
are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness
issued to evidence an obligation to repay moneys lent
to a person by one or more banks, trust companies or
banking firms, or any certificate of interest or
participation in any such note or evidence of
indebtedness; (ii) an obligation shall be deemed to be
"in default" when a default in payment of principal
shall have continued for 30 days or more and shall not
have been cured; and (iii) the Trustee shall not be
deemed to be the owner or holder of (A) any security
which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default
as defined clause (ii) above, or (B) any security
which it holds as collateral security under this
Indenture, irrespective of any default hereunder, or
(C) any security which it holds as agent for
collection, or as custodian, escrow agent or
depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference
to the Company, means every person who, within three
year prior to the time as of which the determination
is made, has purchased from the Company with a view
to, or has offered or sold for the Company in
connection with, the distribution of any security of
the Company outstanding at such time, or has
participated or has had a direct or indirect
participation in any such undertaking, or has
participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but
such term shall not include a person whose interest
was limited to a commission from an underwriter or
dealer not in excess of the usual and customary
distributors' or sellers' commission.
(2) The term "director" means any director of a
corporation or any individual performing similar
functions with respect to any organization, whether
incorporated or unincorporated.
(3) The term "person" means an individual, a
corporation, a partnership, an association, a joint-
stock company, a trust, an unincorporated organization
or a government or political subdivision thereof. As
used in this paragraph, the term "trust" shall
include only a trust where the interest or interests
of the beneficiary or beneficiaries are evidenced by a
security.
(4) The term "voting security" means any security
presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of
a person, or any security issued under or pursuant to
any trust, agreement or arrangement whereby a trustee
or trustees or agent or agents for the owner or holder
of such security are presently entitled to vote in the
direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the
Securities.
(6) The term "executive officer" means the
president, every vice president, every trust officer,
the cashier, the secretary and the treasurer of a
corporation, and any individual customarily performing
similar functions with respect to any organization
whether incorporated or unincorporated, but shall not
include the chairman of the board of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be
calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities
of the Trustee, the Company or any other person
referred to in this Section (each of whom is referred
to as a "person" in this paragraph) means such amount
of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such
specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of
such person are entitled to cast in the direction or
management of the affairs of such person.
(2) A specified percentage of a class of securities
of a person means such percentage of the aggregate
amount of securities of the class outstanding.
(3) The term "amount," when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if
relating to capital shares and the number of units if
relating to any other kind of security.
(4) The term "outstanding" means issued and not held
by or for the account of the issuer. The following
securities shall not be deemed outstanding within the
meaning of this definition:
(i) securities of an issuer held in a sinking fund
relating to securities of the issuer of the same
class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer,
if the obligation evidenced by such other class of
securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by
the issuer thereof;
provided, however, that any voting securities of an
issuer shall be deemed outstanding if any person other
than the issuer is entitled to exercise the voting
rights thereof.
(5) A security shall be deemed to be of the same
class as another security if both securities confer
upon the holder or holders thereof substantially the
same rights and privileges; provided, however, that,
in the case of secured evidences of indebtedness, all
of which are issued under a single indenture,
differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient
to constitute such series different classes; and
provided, further, that, in the case of unsecured
evidences of indebtedness, differences in the interest
rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different
classes, whether or not they are issued under a single
indenture.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business
under the laws of the United States of America, any
State thereof or the District of Columbia, authorized
under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least
$1,000,000 and subject to supervision or examination
by Federal or State authority. If such corporation
publishes reports of condition at least annually,
pursuant to law or to the requirements of said
supervising or examining authority, then for the
purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most
recent report of condition so published. If at any
time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 609. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance
with the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving
written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee
required by Section 610 shall not have been delivered
to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
607(a) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written
request therefor by the Company or by any such Holder,
or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 512, any Holder
who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any
such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee
with respect to the Securities of any particular
series) and shall comply with the applicable
requirements of Section 610. If, within one year after
such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section
610, become the successor Trustee with respect to the
Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of
any series shall have been so appointed by the Company
or the Holders and accepted appointment in the manner
required by Section 610, any Holder who has been a
bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a
successor Trustee with respect to the Securities of
any series by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses
appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect
to the Securities of such series and the address of
its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such
appointment and which (1) shall contain such
provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts
duties of the retiring Trustee with respect to the
Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all
of the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any
of the provisions of this Indenture as shall be
necessary to provide for or facilitate the
administration of the trusts hereunder by more than
one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute
such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of
the retiring Trustee shall become effective to the
extent provided therein and each such successor
Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to
which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this
Article.
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or
substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such
authentication and deliver the Securities so
authenticated with the same effect as if such
successor Trustee had itself authenticated such
securities.
SECTION 612. Preferential Collection of Claims
Against Company.
(a) Subject to Subsection (b) of this Section, if the
Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company
within four months prior to a default, as defined in
Subsection (c) of the Section, or subsequent to such a
default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee
individually, the Holders of the Securities and the
holders of other indenture securities, as defined in
Subsection (c) of this Section:
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor
in respect of principal or interest, effected after
the beginning of such four months' period and valid as
against the Company and its other creditors, except
any such reduction resulting from the receipt or
disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right
of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by the Trustee in respect
of any claims as such creditor, either as security
therefor, or in satisfaction or composition thereof,
or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the
rights, if any, of the Company and its other creditors
in such property or such proceeds.
Nothing herein contained, however, shall affect the
right of the Trustee:
(A) to retain for its own account (i) payments made
on account of any such claim by any Person (other than
the Company) who is liable thereon, (ii) the proceeds
of the bona fide sale of any such claim by the Trustee
to a third Person, and (iii) distributions made in
cash, securities or other property in respect of
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
State law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if
such property was so held prior to the beginning of
such four months' period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if
such claim was created after the beginning of such
four months' period and such property was received as
security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden
of proving that at the time such property was so
received the Trustee had no reasonable cause to
believe that a default, as defined in Subsection (c)
of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any
property held as security for such claim as provided
in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D),
property substituted after the beginning of such four
months' period for property held as security at the
time of such substitution shall, to the extent of the
fair value of the property released, have the same
status as the property released, and, to the extent
that any claim referred to in any of such paragraphs
is created in renewal of or in substitution for or for
the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim
shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds
and property held in such special account and the
proceeds thereof shall be apportioned among the
Trustee, the Holders and the holders of other
indenture securities in such manner that the Trustee,
the Holders and the holders of other indenture
securities realize, as a result of payments from such
special account and payments of dividends on claims
filed against the Company in bankruptcy or
receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
State law, the same percentage of their respective
claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from
the Company of the funds and property in such special
account and before crediting to the respective claims
of the Trustee and the Holders and the holders of
other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, but
after crediting thereon receipts on account of the
indebtedness represented by their respective claims
from all sources other than from such dividends and
from the funds and property so held in such special
account. As used in this paragraph, with respect to
any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy
or receivership or proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable
State law, whether such distribution is made in cash,
securities or other property, but shall not include
any such distribution with respect to the secured
portion, if any, of such claim. The court in which
such bankruptcy, receivership or proceedings for
reorganization is pending shall have jurisdiction (i)
to apportion among the Trustee, the Holders and the
holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and
property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in
whole or in part, to give to the provisions of this
paragraph due consideration in determining the
fairness of the distributions to be made to the
Trustee and the Holders and the holders of other
indenture securities with respect to their respective
claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities
or other property held in such special account or as
security for any such claim, or to make a specific
allocation of such distributions as between the
secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as
a mathematical formula.
Any Trustee which has resigned or been removed after
the beginning of such four months' period shall be
subject to the provisions of this Subsection as though
such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the
beginning of such four months' period, it shall be
subject to the provisions of this Subsection if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to
account, if such Trustee had continued as Trustee,
occurred after the beginning of such four months'
period; and
(ii) such receipt of property or reduction of claim
occurred within four months after such resignation or
removal.
(b) There shall be excluded from the operation of
Subsection (a) of this Section a creditor relationship
arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such
advances and of the circumstances surrounding the
making thereof is given to the Holders at the time and
in the manner provided in the Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an
indenture, transfer agent, registrar, custodian,
paying agent, fiscal agent or depositary, or other
similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a
cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of
a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended,
which is directly or indirectly a creditor of the
Company; and
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange,
acceptances or obligations which fall within the
classification of self liquidating paper, as defined
in Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make
payment in full of the principal of or interest on any
of the Securities or upon the other indenture
securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means
securities upon which the Company is an obligor
outstanding under any other indenture (i) under which
the Trustee is also trustee, (ii) which contains
provisions substantially similar to the provisions of
this Section, and (iii) under which a default exists
at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any
transaction in which full payment for goods or
securities sold is made within seven days after
delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and
payable upon demand;
(4) the term "self-liquidating paper" means any
draft, bill of exchange, acceptance or obligation
which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale
of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a
lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting
the security, provided the security is received by the
Trustee simultaneously with the creation of the
creditor relationship with the Company arising from
the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders.
The Company will furnish or cause to be furnished to
Trustee
(a) semi-annually, not later than 15 days after the
Regular Record Date and not later than 15 days after
the date which is six months after the Regular Record
Date, for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the
names and addresses of the Holders of the Securities
of such series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the
Company of any such request, a list of similar form
and content as of a date not more than 15 days prior
to the time such list is furnished.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses
of Holders contained in the most recent list furnished
to the Trustee as provided in Section 701. The Trustee
may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such
applicant has owned a Security for a period of at
least six months preceding the date of such
application, and such application states that the
applicants desire to communicate with other Holders
with respect to their rights under this Indenture or
under the Securities and is accompanied by a copy of
the form of proxy or other communication which such
applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance
with Section 702(a), or
(ii) inform such applicants as to the approximate
number of Holders whose names and addresses appear in
the information preserved at the time by the Trustee
in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form
of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee
shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in
the information preserved at the time by the Trustee
in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in
such request, with reasonable promptness after a
tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five
days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with
a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of
applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections
specified filed, shall enter an order refusing to
sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections,
the Commission shall find, after notice and
opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable
promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable
by reason of the disclosure of any such information as
to the names and addresses of the Holders in
accordance with Section 702(b), regardless of the
source from which such information was derived, and
that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request
made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year 1987, the Trustee shall
transmit by mail to all Holders, as their names and
addresses appear in the Security Register, a brief
report dated as of such May 15 with respect to:
(1) its eligibility under Section 608 and its
qualifications under Section 607, or in lieu thereof,
if to the best of its knowledge it has continued to be
eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount and the circumstances
surrounding the making of any advances by the Trustee
(as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims
or may claim a lien or charge, prior to that of the
Securities, on any property or funds held or collected
by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if
such advances so remaining unpaid aggregate not more
than 1/2 of 1% of the principal amount of the
Securities Outstanding on the date of such report:
(3) the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its
individual capacity on the date of such report, with a
brief description of any property held as collateral
security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described
in Section 612(b)(2), (3), (4) or (6);
(4) the property and funds, if any, physically in the
possession of the Trustee, as Trustee, on the date of
such report;
(5) any additional issue of Securities which the
Trustee has not previously reported; and
(6) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion
materially affects the Securities, except action in
respect of a default, notice of which has been or is
to be withheld by the Trustee in accordance with
Section 602.
(b) The Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the
Security Register, a brief report with respect to the
character and amount of any advances (and if the
Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee
(as such) since the date of the last report
transmitted, pursuant to Subsection (a) of this
Section (or if no report has yet been so transmitted,
since the date of execution of this instrument) for
the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on
property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to
this Subsection, except that the Trustee shall not be
required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate
10% or less of the principal amount of the Securities
Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee
with each stock exchange upon which any Securities are
listed, with the Commission and the Company. The
Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (or copies of
such portions of any of the foregoing as the
Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to
either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be
required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed
and registered on a national securities exchange as
may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from
to time by the Commission, such additional
information, documents and reports with respect to
compliance by the Company with the conditions and
covenants of this Indenture as may be required from
time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, within
30 days after the filing thereof with the Trustee,
such summaries of any information, documents and
reports required to be filed by the Company pursuant
to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures Without Consent
of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or
more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor
of the covenants of the Company herein and in the
Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of
Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are expressly being included
solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to
principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or
elimination shall become effective only when there is
no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to
add to or change any of the provisions of this
Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(9) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of
Article Twelve; or
(10) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with
any other provision herein, or to make any other
provisions with respect to matters or questions
arising under this Indenture, provided such action
shall not adversely affect the interests of the
Holders of Securities of any series in any material
respect.
SECTION 802. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities
of each series affected by such supplemental
indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this
Indenture; provided, however, that no such
supplemental indenture shall, without a consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or
the redemption thereof, or change any Place of Payment
where, or the coin or currency in which, any Security
or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the
Redemption Date), or adversely affect the right to
convert any Security pursuant to Article Twelve
(except to the extent permitted by Section 801(a)), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of
whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or
Section 511, except to increase any such percentage or
to provide that certain other provisions of this
Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause
shall not be deemed to require the consent of any
Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in
accordance with the requirements of Sections 610(b)
and 801(8).
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture
which has expressly been included solely for the
benefit of one or more particular series of
Securities, or which modifies the rights of the
Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the
Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any
proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance
thereof.
SECTION 803. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by
this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or
otherwise.
SECTION 804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under
this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 805. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
SECTION 806. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated
by the Trustee and delivered by the Company in
exchange for Outstanding Securities of such series.
New Securities of any series issued and exchanged
pursuant to this Section shall be entitled to all the
benefits of this Indenture as the same is amended,
modified or supplemented by any such supplemental
indenture.
ARTICLE NINE
COVENANTS
SECTION 901. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and
punctually pay the principal of and interest on the
Securities of that series in accordance with the terms
of the Securities of such series and this Indenture.
The Company further covenants that it will not pay any
dividends on any class of stock of the Company until
all accrued and unpaid interest on the Securities has
been paid.
SECTION 902. Money for Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its own Paying
Agent with respect to any series of Securities, it
will, on or before each due date of the principal of
or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of
as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to
each due date of the principal of or interest on any
Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or
interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute
and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the
principal of or interest on Securities of that series
in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by
the Company (or any other obligor upon the Securities
of that series) in the making of any payment of
principal or interest on the Securities of that
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent or then held by the Company, in trust for the
payment of the principal of or interest on any
Security of any series and remaining unclaimed for two
years after such principal or interest has become due
and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment
thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall
thereupon cease.
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in
accordance with their terms and this Article.
SECTION 1002. Election to Redeem.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. The Company
may not redeem any Securities during any Conversion
Period.
SECTION 1003. Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 10 days
prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) that on the Redemption Date the Redemption Prig
will become due and payable upon each such Security to
be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date, and
(4) the place or places where such Securities are be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities shall be given by
the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1004. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section
902) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be
redeemed on that date.
SECTION 1005. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the
Redemption Date become due and payable at the
Redemption Price therein specified, and from and after
such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in
accordance with said notice, such Security shall be
paid by the Company a the Redemption Price, together
with accrued interest to the Redemption Date.
If any Security called for redemption shall not be to
paid upon surrender thereof for redemption, the
principal shall continue to bear interest until paid.
ARTICLE ELEVEN
PRIOR INDENTURES
SECTION 1101. Description of Prior Indentures.
As of the date of this Indenture, the Company has
outstanding other securities pursuant to indentures
between the Company and the Trustee dated the
following dates: November 1, 1981, November 1, 1982,
November 1, 1983, November 1, 1984 and November 1,
1985 (collectively, the "Prior Indentures"). The
securities issued pursuant to the Prior Indentures are
unsecured convertible debentures which rank equally
with the Securities in right of payment.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Right of Conversion.
The Holder of any Security or Securities of any series
shall have the right, at the Holder's option, at any
time during the Conversion Period applicable to such
series (except that with respect to any Security or
Securities which shall be called for redemption, such
right shall terminate at the close of business on the
Redemption Date for such Security or Securities,
unless the Company shall default in payment due upon
redemption thereof), to convert, subject to the terms
and provisions of this Article Twelve, the principal
of any such Security or Securities into fully paid and
non-assessable shares of Class C Stock of the Company,
at the rate of shares of Class C Stock for each $1,000
principal amount of Securities to be determined for
each series as contemplated by Section 301 or, in case
an adjustment therein has taken place pursuant to the
provisions of Section 1204, then at the rate as so
adjusted; provided, however, that no Holder may
convert less than all of the principal amount of any
Security surrendered for conversion, and, provided
further, that no Holder may convert any Security of a
series unless all Securities of such series held by
such Holder are surrendered for conversion. The
conversion right shall be exercised by (i) the
surrender of the Security or Securities, the principal
of which is so to be converted, to the Company at any
time during usual business hours at its principal
office in Omaha, Nebraska, accompanied by written
notice, substantially in the form set forth in Section
204, executed by the Holder of such Security or
Securities, that the Holder elects to convert such
Security or Securities and (ii) the execution by the
Holder and delivery of the Stock Repurchase Agreement
to the Company. All Securities surrendered to the
Company for conversion shall be cancelled by it, and
no Securities shall be issued in lieu thereof.
SECTION 1202. Issuance of Class C Stock; Time of
Conversion.
Within sixty (60) days of the surrender, as herein
provided, of any Security or Securities for
conversion, the Company shall issue a certificate or
certificates representing the number of fully paid and
non-assessable shares of Class C Stock of the Company
into which such Security or Securities may be
converted. Subject to the following provisions of this
paragraph and of Section 1204, such conversion shall
be deemed to have been made immediately prior to the
close of business on the date that such Security or
Securities shall have been surrendered in satisfactory
form for conversion, so that the rights of the Holder
as a Holder shall cease with respect to such Security
or Securities at such time, and the Person or Persons
entitled to receive the shares of Class C Stock
deliverable upon conversion of such Security or
Securities shall be treated for all purposes as having
become the record holder or holders of such shares of
Class C Stock at such time; provided, however, that no
such surrender on any date when the stock transfer
books of the Company shall be closed shall be
effective to constitute the Person or Persons entitled
to receive the shares of Class C Stock deliverable
upon such conversion as the record holder or holders
of such shares of Class C Stock on such date, but such
surrender shall be effective to constitute the Person
or Persons entitled to receive such shares of Class C
Stock as the record holder or holders thereof for all
purposes immediately prior to the close of business on
the next succeeding day on which such stock transfer
books are open.
SECTION 1203. Adjustments in Respect of Interest.
Any Security of any series converted during the
Conversion Period applicable to such series shall
cease to accrue interest on the principal amount
thereof as of the Conversion Interest Termination
Date.
SECTION 1204. Adjustment of Conversion Rate.
The conversion rate applicable to any series of
Securities shall be subject to adjustment as follows:
(a) In case the Company shall change the stock
issuable upon conversion of the Securities of any
series into the same or different number of new shares
of the same or different class or classes, the Holder,
upon conversion, shall be entitled to receive, in lieu
of the Class C Stock which he would have been entitled
to receive but for such change, the number of shares
of the new stock equivalent to the number of shares of
new stock that would have been issued to him in
exchange to such number of shares of Class C Stock
which he would have been entitled to receive if the
conversion privilege had been exercisable and
exercised immediately prior to such change.
(b) In case at any time or from time to time the
Company shall declare and pay on or in respect of the
Class C Stock issuable upon conversion, any dividend
of shares of stock of any class or classes, the
Holder, upon exercising the conversion privilege,
after the date of record of the holders of stock to
whom such stock dividend is payable, shall be entitled
to receive the shares of stock theretofore issuable
upon conversion together with the dividend stock which
would have been issuable if the conversion privilege
had been exercisable and exercised immediately prior
to the record date.
(c) The Company covenants and agrees that in case it
shall consolidate or merge with, or shall sell its
property as an entirety, or substantially as an
entirety to any other corporation, proper provision
will be made as part of the terms of such
consolidation, merger or sale, that the Holder of any
Security of any series will thereafter be entitled to
convert such Security into the same kind and amount of
securities and any other assets as may be issuable or
distributable by the terms of such consolidation,
merger or sale with respect to the number of shares of
Class C Stock into which such Security is convertible
at the time of such consolidation, merger or sale;
provided that in the event of any such consolidation,
merger or sale, the surviving corporation with which
the Company consolidates, merges or to which it sells
property shall succeed to all of the rights provided
for herein, including the right of redemption.
SECTION 1205. No Fractional Shares.
No fractional shares or scrip representing fractional
shares shall be issued upon the conversion of any
Security or Securities. If more than one Security of
any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares
issuable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the
Securities of such series so surrendered. If the
conversion of any Security or Securities results in a
fraction, then the Holder of such Security or
Securities shall be required to make a cash payment to
the Company in an amount sufficient to enable the
Holder to obtain a whole share in lieu of such
fractional share.
SECTION 1206. Trustee Not Liable.
The Trustee shall not at any time be under any duty or
responsibility to any Holder of Securities to
determine whether any facts exist which may require
any adjustment of the conversion rate applicable
thereto, or with respect to the nature or extent of
any such adjustment when made, or with respect to the
method employed, or to be employed, in making the
same. The Trustee shall not be accountable with
respect to the validity or value (or the kind or
amount) of any shares of Class C Stock or of any
securities or property which may at any time be issued
or delivered upon the conversion of any Security, nor
does it make any representation with respect thereto.
The Trustee shall not be responsible for any failure
of the Company to issue, transfer or deliver any
shares of Class C Stock or stock certificates or other
securities or other property upon the surrender of any
Security for the purpose of conversion, or, subject to
Section 601, to comply with any of the covenants of
the Company contained in this Article Twelve.
ARTICLE THIRTEEN
PRIORITY OF SECURITIES
SECTION 1301. Parity With All Unsecured Indebtedness.
The indebtedness represented by the Securities and the
payment of the principal of and interest on each and
all of the Securities are hereby expressly made equal
in right of payment to the payment of all other
unsecured and unsubordinated claims against and
indebtedness of the Company.
SECTION 1302. Payment Over of Proceeds Upon
Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to
its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any
assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company,
then and in any such event the Holders shall be
entitled to receive payment in full of all amounts due
or to become due on or in respect of all of the
Securities, or provision shall be made for such
payment in money or money's worth, before the
stockholders of the Company are entitled to receive
any distribution of the assets of the Company.
The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation
or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially
as an entirety to another Person shall not be deemed a
dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling
of assets and liabilities of the Company for the
purposes of this Section provided that the Person
formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance
or transfer such properties and assets substantially
as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer,
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual
payment of principal and interest on all the
Securities and the performance of all covenants of the
Indenture on the part of the Company to be performed
or observed.
SECTION 1303. Reliance on Judicial Order or
Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee,
subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of
competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding
is pending, or a certificate of trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee
or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in
such payment or distribution, the holders of other
indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent
thereto or to this Article.
* * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts
shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above
written.
PETER KIEWIT SONS', INC.
[SEAL]
By ---------------------
Title: -----------------
Attest:
- -------------------------
Title: ------------------
FIRSTIER BANK N.A. OMAHA
Trustee
[SEAL]
By ---------------------
Title: -----------------
Attest:
- -------------------------
Title: ------------------
* This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
EXHIBIT 4.4
PETER KIEWIT SONS', INC.
a Delaware corporation
Registered Debenture No.______ $______
7.35% Convertible Debenture Due October 31, 2008
PETER KIEWIT SONS', INC., a corporation organized
and existing under the laws of the State of Delaware,
and having its principal place of business in the City
of Omaha, Nebraska (hereinafter called the
"Corporation"), for the value received, hereby
promises to pay to ----------------------------------
or registered assigns (hereinafter called the
"Debentureholder") on October 31, 2008, the principal
sum of ----------($----------) Dollars.
This debenture is one of a 1998 issue of
registered convertible debentures of the Corporation,
due October 31, 2008 unless previously redeemed or
converted, limited to the aggregate principal amount
of Four Million Seven Hundred Thirty Thousand and
No/100 ($4,730,000.00) Dollars, all issued or to be
issued pursuant to an indenture, dated as of July 1,
1986, executed and delivered by Peter Kiewit Sons',
Inc. (now Level 3 Communications, Inc.) ("PKS") and
FirstTier Bank, N.A. Omaha, as trustee, as amended
pursuant to a First Supplemental Indenture between the
Corporation, PKS and U.S. Bank National Association
(hereinafter referred to as "Trustee"), as successor
trustee dated as of March 31, 1998. Reference is
hereby made to the indenture, and all indentures
supplemental thereto, for a description of the rights,
limitations, obligations and immunities of the
Corporation, the holders of the debentures and the
Trustee.
(1) TYPE OF PAYMENT: Payment of interest and
principal shall be in any coin or currency of the
United States of America which at the time of payment
shall be legal tender for the payment of public or
private debts.
(2) INTEREST: Except as hereinafter provided,
the Corporation promises to pay to the registered
owner hereof or his registered assigns, interest on
the principal sum as of November 1, 1999 and each
succeeding November 1, at the rate of Seven and 35/100
percent per annum until the Corporation's obligation
with respect to the payment of the principal amount
shall have been discharged. Interest shall accrue
upon this debenture until the date of redemption or
maturity, whichever of these dates shall first occur.
In the event of conversion as provided in paragraph
(7) hereof, interest shall cease running on the
principal amount of the debenture on June 30, 2003.
Interest on this debenture shall be paid annually on
the November 1st immediately following the twelve
months in which such interest was earned.
(3) PLACE OF PAYMENT: The principal and interest
on this debenture shall be payable at the office of
the Corporation at Omaha, Nebraska.
(4) DEFAULT: This debenture shall be deemed to
be in default whenever the principal sum and/or
interest becomes payable and remains unpaid for a
period of sixty (60) days.
(5) REDEMPTION: This debenture is subject to
redemption at any time prior to the date of maturity
at its principal amount plus all unpaid interest to
the date of redemption provided, however, that the
entire series is redeemed. This debenture may not be
redeemed during the thirty-one (31) day conversion
period provided for in paragraph (7) hereof.
Redemption shall be preceded by notice thereof, given
to the registered holder by registered mail no later
than ten (10) days preceding the date of redemption.
(6) TRANSFER: The debenture may be transferred
by the registered holder at the principal office of
the Corporation in Omaha, Nebraska on registry books
kept for such purpose at such office, upon surrender
and cancellation of this debenture, and the payment of
applicable charges. The Corporation and the Trustee
may treat the registered owner of this debenture as
the absolute owner for all purposes.
(7) CONVERSION: (a) This debenture is
convertible into the $0.01 par value common stock
("Common Stock") of the Corporation on the following
basis: the debenture is not convertible, in whole or
in part, for the period commencing on the date of
issuance and ending on September 30, 2003. During the
period commencing on October 1, 2003 and ending on
October 31, 2003, the Debentureholder may convert the
principal amount of the debenture plus a cash payment
in the amount of ----- multiplied by the formula value
of the Common Stock on the date of conversion, into --
- -----------------(------------) shares of Common Stock
of the Corporation. During the period commencing on
November 1, 2003 and ending on October 31, 2008, the
date of maturity, the debenture is not convertible, in
whole or in part. The conversion privilege shall be
deemed exercised by submission of the debenture with a
written request for conversion during the applicable
thirty-one (31) day period at the principal office of
the Corporation. The Corporation shall thereafter,
within a sixty (60) day period, issue the Common Stock
of the Corporation. As a condition precedent to the
rights of conversion granted in this paragraph, the
Debentureholder agrees to execute the Corporation's
applicable Stock Repurchase Agreement. The debenture
shall only be convertible by the Debentureholder if
the Debentureholder is otherwise eligible to own
shares of Common Stock of the Corporation as provided
in the Corporation's Restated Certificate of
Incorporation.
(b) In case the Corporation shall change the
stock issuable upon conversion into the same or
different number of new shares of the same or of any
other class or classes, the Debentureholder, upon
conversion, shall be entitled to receive, in lieu of
the old stock which he would have been entitled to
receive but for such change, a number of shares of the
new stock equivalent to the number of shares of new
stock that would have been issued to him in exchange
for such number of shares of old stock which he would
have been entitled to receive if the conversion
privilege had been exercisable and exercised
immediately prior to such change.
(c) In case at any time or from time to time the
Corporation shall declare and pay on or in respect of
the class of stock issuable upon conversion, any
dividend of shares of stock of any class or classes,
the Debentureholder, upon exercising the conversion
privilege, after the date of record of the holders of
stock to whom such stock dividend is payable, shall be
entitled to receive the shares of stock theretofore
issuable upon conversion, together with the dividend
stock which would have been issuable if the conversion
privilege had been exercisable and exercised
immediately prior to the record date.
(d) The Corporation covenants and agrees that in
case it shall consolidate or merge with, or shall sell
its property as an entirety, or substantially as an
entirety to any other corporation, proper provision
will be made as part of the terms of such
consolidation, merger or sale, that the holder of any
convertible debenture will thereafter be entitled to
convert it into the same kind and amount of securities
and any other assets as may be issuable or
distributable by the terms of such consolidation,
merger or sale with respect to the number of shares of
Common Stock into which this debenture is convertible
at the time of such consolidation, merger or sale;
provided however, that the surviving corporation with
which the Corporation consolidates, merges or sells
its property shall succeed to all of the rights
provided for in this debenture, including the right of
redemption.
(8) SUBORDINATION: In the payment of their
claims, all creditors of the Corporation shall rank
equally with the holders of convertible debentures.
All claims of the convertible Debentureholders against
earnings or assets are hereby made superior to those
of stockholders, and the Corporation agrees that as
long as any of its convertible debentures are
outstanding, it will not pay any dividends on its
stock until all liability for unpaid interest on its
debentures has been paid. In the event of dissolution
or liquidation of the Corporation, the holders of all
debentures shall be entitled to be paid in full, both
principal and interest, before any assets of the
Corporation are distributed to any stockholder.
(9) OWNERSHIP: The Corporation may treat the
registered owner of the debenture as the absolute
owner of this debenture.
(10) LIQUIDATION OF LIABILITY: No recourse shall
be had for the payment of the principal or interest of
this debenture, against any incorporator, stockholder,
officer, or director, past, present, or future, of the
Corporation, all such liability being expressly waived
by the owner of this debenture.
(11) VALIDATION: This debenture shall not be
valid or become obligatory for any purpose until the
certificate of authentication thereon shall have been
signed by the Trustee.
IN WITNESS WHEREOF, Peter Kiewit Sons', Inc. has
caused this debenture to become signed and its
corporate seal to be hereunto affixed by its officers
duly authorized thereunto, all as of the 1st day of
November, 1998.
ATTEST: PETER KIEWIT SONS', INC.
- ------------------- By----------------------
Assistant Secretary President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION: This is one
of the debentures described in the Trust Indenture,
dated as of July 1, 1986, by and between Peter Kiewit
Sons', Inc. (now Level 3 Communications, Inc.)
("PKS") and FirstTier Bank, N.A. Omaha, as trustee,
as amended pursuant to a First Supplemental Indenture
between the Corporation, PKS and U.S. Bank National
Association, as successor trustee dated as of March
31, 1998.
Dated ------------ By--------------------
Authorized Officer
This Debenture and the transfer thereof are subject to
restrictions which are stated in an Agreement between
the Debentureholder(s) whose name(s) appear(s) hereon
and PETER KIEWIT SONS', INC., dated November 1, 1998.
EXHIBIT 4.5
AGREEMENT
WITH RESPECT TO
CONVERTIBLE DEBENTURES
OF
PETER KIEWIT SONS', INC.
THIS AGREEMENT, made and entered into this ----
day of -------------, 19----, by and between ---------
- -------------, hereinafter referred to as the
Debentureholder, and PETER KIEWIT SONS', INC., a
Delaware corporation, hereinafter referred to as the
Corporation;
WITNESSETH:
WHEREAS, it has been and is the policy of the
Corporation, as being in its best interest, to
restrict the issuance and holding of its corporate
convertible debentures, hereinafter referred to as
debentures; and
WHEREAS, the Debentureholder, being
presently qualified to hold debentures, desires to be
issued debentures of the Corporation to be held
subject to the conditions and restrictions required to
effect the aforesaid policy as set forth hereinafter;
NOW THEREFORE, in consideration of the
issuance of debentures of the Corporation to
Debentureholder and for other good and valuable
consideration, the receipt whereof is acknowledged by
each of the parties hereto, it is agreed by and
between the parties as follows:
(1) Debentures Subject to Agreement.
Unless otherwise specifically set forth in a separate
written agreement between the Corporation and the
Debentureholder, this Agreement shall apply to all
debentures issued to the Debentureholder on or before
the date of this Agreement and any additional
debentures which are issued to the Debentureholder
after the date of this Agreement. This Agreement
supersedes any previous agreement between the
Corporation and the Debentureholder relating to such
debentures and the sale or repurchase of such
debentures by the Corporation.
(2) Corporation's Purchase of Debentures
Upon Debentureholder's Proposed Disposition of
Debentures. Except for pledges of debentures as
collateral for loans in connection with the ownership
of the Corporation's debentures, Debentureholder shall
not give, sell, assign, pledge, encumber, hypothecate,
transfer or otherwise dispose of any debentures
subject to this Agreement, without first offering in
writing to sell the debentures to the Corporation.
The offer to sell the debentures to the Corporation by
the Debentureholder shall be accepted by the
Corporation and a notice of acceptance shall be given
to the Debentureholder within 30 days following
receipt of the offer from Debentureholder.
(3) Corporation's Purchase of Debentures
Upon Debentureholder's Death or Termination of
Employment. The Debentureholder agrees that upon
termination of Debentureholder's employment for any
reason, including death, that Debentureholder,
Debentureholder's representative, or Debentureholder's
estate shall sell all debentures owned by
Debentureholder, and the Corporation shall purchase
all of said debentures in accordance with the terms of
this Agreement. Notice of the Corporation's intent to
purchase such debentures shall be given in the event
of death of Debentureholder, within 180 days from the
date of death, and in the event of ceasing to be in
the employ of Corporation, within 90 days from the
date employment ceases. Employment is herewith
defined to mean 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.
(4) Purchase Price and Payment for
Debentures. The purchase price shall be at a price
equal to the principal amount of the debentures plus
accrued and unpaid interest to the date of purchase.
The purchase price shall be paid to the
Debentureholder, or such other person as may be
legally entitled thereto, within 60 days after the
date of mailing of notice by the Corporation as
provided in paragraphs (2) and (3); provided, that the
Corporation received the Certificate or Certificates
evidencing the debentures subject to purchase by the
Corporation, endorsed in blank or accompanied by
appropriate transfer powers executed in blank, and
accompanied by such other evidence of authority as may
reasonably be required. In the event of failure to
deliver to the Corporation the Certificate or
Certificates for the debentures subject to purchase
with required evidence of authority within 30 days
after the date of mailing the notice by the
Corporation as provided in paragraphs (2) and (3), the
Secretary shall be authorized to cancel such
Certificates on the books of the Corporation and such
debentures shall be deemed to be no longer
outstanding. The holder of such debentures shall
thereafter have no further interest as a
Debentureholder of the Corporation with respect to
such debentures except to receive the purchase price
therefor. It is further understood and agreed that
the Corporation shall be authorized to deduct from the
purchase price any amount due it or others from the
Debentureholder pertaining to the Corporation's
debentures.
(5) Debentures to be Acquired by
Corporation from Debentureholder. It is agreed by the
parties that in the event any debenture of the
Corporation is tendered by the Debentureholder to the
Corporation, the Corporation shall purchase all of the
tendered debentures, and in addition thereto, may, at
its option, purchase all or any part of other
debentures of the Corporation then owned by the
Debentureholder.
(6) Notices. Any notices required or
permitted to be given 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 Debentureholder or the
Debentureholder's personal representatives, if mailed,
shall be sent to the Debentureholder's last known
address. The notice to the Corporation shall be
delivered or mailed to the Secretary, Peter Kiewit
Son's, Inc., Kiewit Plaza, Omaha, Nebraska 68131.
(7) Governing Law. This Agreement shall be
governed in all respects by the laws of the State of
Nebraska.
(8) Binding Effect. This Agreement shall
inure to the benefit of and be binding upon the heirs,
personal representatives and assigns of
Debentureholder and upon the successors and assigns of
the Corporation.
IN WITNESS WHEREOF, the parties have executed
this Agreement on the date first above written.
WITNESS:
- ---------------- ------------------------
Debentureholder
ATTEST: PETER KIEWIT SONS', INC.
Corporation
- ---------------- By ---------------------
Assistant Secretary President
EXHIBIT 5.1
October 5, 1998
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
Re: Form S-8 Registration Statement
Gentlemen:
I am corporate counsel to Peter Kiewit Sons',
Inc., a Delaware corporation (the "Company"), and in
such capacity have examined the Registration Statement
on Form S-8 to which this opinion is an exhibit, to be
filed with the Securities and Exchange Commission on or
about October 5, 1998 (the "Registration Statement").
The Registration Statement will register $4,730,000 of
the Company's 1998 Series Convertible Debentures due
October 31, 2008 ("1998 Debentures"). I have also
examined copies of the Restated Certificate of
Incorporation and the Amended and Restated By-laws of
the Company. In addition, I have made such other
examinations and have ascertained or verified to my
satisfaction such additional facts as I deem pertinent
under the circumstances.
Based on the foregoing, it is my opinion that:
1. The Company is a corporation duly organized
and existing under the laws of the State of Delaware.
2. The 1998 Debentures, when issued and sold
pursuant to such offering and in accordance with the
terms of the Trust Indenture, will be binding
obligations of the Company.
I hereby consent to the filing of this opinion as
an Exhibit to the Registration Statement.
Very truly yours,
/s/ Michael F. Norton
Michael F. Norton
Corporate Counsel
MFN:gcr
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in
the Registration Statement of Peter Kiewit Sons', Inc.
on Form S-8 of our report dated March 20, 1998 of our
audits of the consolidated financial statements of
Peter Kiewit Sons', Inc. (formerly PKS Holdings, Inc.)
for the period ended December 27, 1997, which report
is included in the Annual Report on Form 10-K of Peter
Kiewit Sons', Inc. (formerly PKS Holdings, Inc.).
We also consent to the incorporation by reference
in the Registration Statement of our report dated
March 30, 1998 on our audits of the financial
statements of Kiewit Construction and Mining Group, a
business group of Level 3 Communications, Inc.
(formerly Peter Kiewit Sons', Inc.) as of December 27,
1997 and December 28, 1996 and for each of the three
years ended December 27, 1997, which report is
included in Peter Kiewit Sons', Inc.'s (formerly PKS
Holdings, Inc.) Current Report on Form 8-K dated March
27, 1998 (filed on April 13, 1998, and as amended on
Form 8-K/A filed on May 1, 1998).
PRICEWATERHOUSECOOPERS
/s/ PricewaterhouseCoopers
Omaha, Nebraska
October 5, 1998
EXHIBIT 99.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0417860
(State of Incorporation) (I.R.S. Employer
Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
Peter Kiewit Sons', Inc.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of Incorporation) (I.R.S. Employer
Identification No.)
Kiewit Plaza, Omaha, Nebraska 68131
(Address of Principal Executive Offices) (Zip Code)
1998 Series Convertible Debentures Due October 31, 2008
(Title of the Indenture Securities)
GENERAL
1. General Information Furnish the following
information as to the Trustee.
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the
obligor or any underwriter for the obligor is an
affiliate of the Trustee, describe each such
affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of
the Trustee's knowledge the obligor is not in default
under any Indenture for which the Trustee acts as
Trustee.
16. LIST OF EXHIBITS List below all exhibits filed
as a part of this statement of eligibility and
qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence
Business.*
3. Authorization of the Trustee to exercise
corporate trust powers (included in Exhibits 1 and 2;
no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4.
N/A.
6. The consents of the Trustee required by
Section 321(b) of the act.
7. Copy of the latest report of condition of the
Trustee published pursuant to law or the requirements
of its supervising or examining authority incorporated
by reference to File Number 333-56865.
*Incorporated by reference to File Number 333-30939.
NOTE
The answers to this statement insofar as such
answers relate to what persons have been underwriters
for any securities of the obligors within three years
prior to the date of filing this statement, or what
persons are owners of 10% or more of the voting
securities of the obligors or affiliates, are based
upon information furnished to the Trustee by the
obligors, While the Trustee has no reason to doubt
the accuracy of any such information, it cannot accept
any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust
Indenture Act of 1939, the Trustee, U.S. Bank National
Association, an Association organized and existing
under the laws of the United States, has duly caused
this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto
duly authorized, and its seal to be hereunto affixed
and attested, all in the City of Denver and State of
Colorado on the 29th day of September, 1998.
U.S. BANK NATIONAL ASSOCIATION
/s/ William W. MacMillan
William W. MacMillan
Vice President
/s/ Patricia M. Peters
Patricia M. Peters
Assistant Secretary
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust
Indenture Act of 1939, the undersigned, U.S. BANK
NATIONAL ASSOCIATION hereby consents that reports of
examination of the undersigned by Federal, State,
Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: September 29, 1998
U.S. BANK NATIONAL ASSOCIATION
/s/ William W. MacMillan
William W. MacMillan
Vice President
