SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PKS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1000 Kiewit Plaza, Omaha Nebraska 68131
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
To be so registered each class is to be registered
None None
If this Form relates to the registration of a
class of securities pursuant to Section 12(b) of the
Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box [ ].
If this Form relates to the registration of a
class of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box [X].
Securities Act registration statement file number
to which this form relates: 333-34627.
Securities to be registered pursuant to Section 12(g)
of the Act:
Common Stock, par value $.01 per share
(Title of class)
Item 1. Description of Registrant's Securities to
be Registered.
The description of the Registrant's Common
Stock, par value $.01 per share, is incorporated
herein by reference to the Registrant's
Registration Statement on Form S-4 (File No. 333-
34627) as filed with the Securities and Exchange
Commission under the Securities Act of 1933, as
amended, 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.
Item 2. Exhibits.
1. Form of Stock Repurchase Agreement for
Employee Stockholders.
2. The Restated Certificate of Incorporation
of PKS Holdings, Inc. dated as of March 18, 1998,
effective March 19, 1998.
3. The Amended and Restated By-Laws of PKS
Holdings, Inc. dated as of March 19, 1998.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has
duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly
authorized
PKS HOLDINGS, INC.
Dated: March 24, 1998 By: /s/ Thomas C. Stortz
Name: Thomas C. Stortz
Title: Vice President
EXHIBIT 3
RESTATED CERTIFICATE OF INCORPORATION
OF
PKS HOLDINGS, INC.
PKS Holdings, Inc., a corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is PKS Holdings, Inc. The
original Certificate of Incorporation of PKS Holdings, Inc. was
filed with the Secretary of State of Delaware on August 4, 1997.
2. Pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware, this Restated Certificate
of Incorporation has been duly authorized and adopted and restates
and amends the provisions of the Certificate of Incorporation of
this Corporation.
3. The text of the Certificate of Incorporation is hereby
restated and amended to read in its entirety as follows:
ARTICLE FIRST
NAME
The name of the Corporation (which is hereinafter referred to
as the "Corporation"), is: PKS Holdings, Inc.
ARTICLE SECOND
DELAWARE OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of
Delaware is to be located at 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent
therein is The Corporation Trust Company, and the address of said
registered agent is 1209 Orange Street in said City, County and
State.
ARTICLE THIRD
PURPOSES
The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of Delaware.
ARTICLE FOURTH
CAPITAL STOCK
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 125,250,000 shares; of
which 250,000 shares shall be Preferred Stock, with no par value
per share and of which 125,000,000 shares shall be Common Stock,
with a par value of $0.01 per share (the "Common Stock").
A description of the different classes of stock and a
statement of the designations, powers, preferences, rights,
qualifications, limitations and restrictions of each of said
classes of stock are as follows:
I.
PREFERRED STOCK
Subject to the limitations prescribed by Delaware law and this
Certificate of Incorporation, the Board of Directors of the
Corporation is authorized to issue the Preferred Stock from time to
time in one or more series, each of such series to have such
powers, designations, preferences and relative, participating,
optional or other rights, and such qualifications, limitations or
restrictions thereof, as shall be determined by the Board of
Directors in a resolution or resolutions providing for the issuance
of such Preferred Stock; provided, however, that no series of the
Preferred Stock shall have any voting rights or be convertible into
shares of stock having any voting rights.
II.
COMMON STOCK
(A) Dividends. After any dividend has been declared and set
aside for payment or paid on any series of Preferred Stock having a
preference over the Common Stock with respect to the payment of
dividends, the holders of the Common Stock shall be entitled to
receive out of the funds legally available therefor, when, as and
if declared by the Board of Directors. The payment of dividends on the
Common Stock shall be at the sole discretion of the Board of Directors.
(B) Liquidation. Upon the liquidation, dissolution or
winding up of the affairs of the Corporation, whether voluntary or
involuntary, after there shall have been paid or set apart for the
holders of any series of Preferred Stock having a preference over
the Common Stock with respect to distributions upon liquidation the
full amount to which they are entitled, the remaining assets
available for distribution to the Corporation's stockholders shall
be distributed to the Common stockholders pro rata on the basis of
the numbers of Common shares held by such stockholders.
III.
VOTING RIGHTS AND CHANGES IN CAPITAL STRUCTURE
(A) Voting Rights. Except as may otherwise be provided by
statute, the holders of the Common Stock shall exclusively possess
voting power for the election of directors and for other purposes,
the holders of record of each share being entitled to one vote for
each share, and the holders of the Preferred Stock shall have no
voting rights nor shall they be entitled to notice of meetings of
stockholders.
(B) Changes in Capital Structure. The Corporation reserves
the right to create new classes of stock, to eliminate classes of
stock, to increase or decrease the amount of authorized stock of
any class or classes, and to otherwise change the powers,
designations, preferences and relative, participating, optional or
other rights, and the qualifications, limitations or restrictions
of any class or classes of stock by the affirmative vote of the
holders of four-fifths of the Common Stock issued and outstanding
(C) Non-Redeemable Series. Ten shares of the Common Stock
are hereby designated as Common Stock, Non-Redeemable Series. The
rights, powers, preferences, privileges and limitations of Common
Stock, Non-Redeemable Series shall be identical to those of all
other shares of Common Stock, except as described in ARTICLE
SIXTH hereof.
ARTICLE FIFTH
DIRECTORS AND OFFICERS
(A)(1) Number, Quorum, Required Votes. The number of
directors of the Corporation which shall constitute the whole Board
of Directors shall at all times be not less than ten (10) nor more
than fifteen (15). Subject to such minimum and maximum limitations,
the number of directors shall be fixed by, or in the manner
provided in, the by-laws. A majority of the whole Board of
Directors shall constitute a quorum for the transaction of
business. Unless this Certificate of Incorporation shall
specifically require a vote of a greater number, the affirmative
vote of a majority of the whole Board of Directors shall be
required to constitute the act of the Board of Directors.
(2) Qualifications of Directors.
(a) No more than three (3) directors may be non-
inside directors, and the balance must be inside directors, as
defined in this subparagraph (A)(2).
(b) An "inside director" is a director who is
either a current inside director or a former inside director, as
each of such terms is defined in this subparagraph (A)(2).
(c) A "current inside director" is a director who
(i) is a current Common stockholder of the Corporation; (ii) is
currently an officer of either (A) the Corporation or (B) a
Subsidiary which is engaged primarily in the construction, mining
or materials businesses; and (iii) was continuously employed by the
Corporation, its predecessor, former parent corporation or such a
Subsidiary for at least eight (8) years before becoming a director.
(d) If a current inside director ceases to be a
current inside director, such director may continue to serve as a
director so long as there is a sufficient number of other inside
directors so that the limitation on non-inside directors required
by subparagraph (A)(2)(a) is satisfied. However, if as a result of
the change in such director's status such non-inside director
limitation would be exceeded, then such director shall
automatically be deemed to have resigned as and shall cease to be a
director. The remaining directors shall thereupon act promptly to
fill the vacancy created by such resignation. Such a vacancy may be
filled with a former inside director, as defined in subparagraph
(A)(2)(e) below. If the director whose resignation created such
vacancy qualifies as a former inside director pursuant to
subparagraph (A)(2)(e), such director may be appointed to fill such
vacancy.
(e) A "former inside director" is a person who:
(i) was at one time a current inside director; (ii) served as an
inside director for at least eight (8) years; and (iii) is declared
to be a former inside director by a majority vote of the directors
holding office at the time of such declaration.
(3) Nomination Procedures. The incumbent directors
shall nominate a slate of directors for election at each annual
meeting of the stockholders of the Corporation. In nominating such
election slates, the directors shall give due consideration to
selecting nominees from each of the principal business segments
represented by the activities of the Corporation and its
Subsidiaries.
(B) Cumulative Voting. At any election for directors every
holder of Common Stock entitled to vote at such election shall have
the right to vote, in person or by proxy, the number of shares
owned by him for as many persons as there are directors to be
elected and for whose election he has a right to vote, or to
cumulate his votes by giving one candidate as many votes as the
number of such directors multiplied by the number of his shares
shall equal, or by distributing such votes on the same principle
among any number of such candidates.
(C) Officers. The Corporation shall have such officers as
the by-laws may provide, except, however, that the Corporation
shall have an officer or officers who shall be empowered to sign
instruments and stock certificates of the Corporation and shall
have an officer who shall have the duty to record the proceedings
of stockholders' meetings and meetings of the Board of Directors.
Officers shall be chosen in such manner and shall hold their
offices for such terms as the by-laws may prescribe or as shall be
determined by the Board of Directors.
ARTICLE SIXTH
POWERS OF THE CORPORATION AND OF THE
DIRECTORS AND STOCKHOLDERS
The following provisions are inserted for the management of
the business and for the conduct of the affairs of the Corporation,
and in further creation, definition, limitation and regulation of
the powers of the Corporation, its directors and stockholders:
(A) Indemnification.
(1) Fullest Extent Permitted by Law. The Corporation
shall indemnify each person who is or was a director, officer or
Employee of the Corporation (including the heirs, executors,
administrators or estate of such person) or is or was serving at
the request of the Corporation 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), (c) and (e) of the Delaware General Corporation Law or
any successor statute.
(2) Non-Exclusivity of Rights. The indemnification
provided by this paragraph (A) of ARTICLE SIXTH 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 his 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.
(3) Repeal or Modification. Any repeal or modification
of paragraph (A) of this ARTICLE SIXTH by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director, officer or Employee of the Corporation existing at the
time of such repeal or modification.
(B) Powers of Board. In furtherance and not in limitation of
the powers conferred by statute, the Board of Directors is
expressly authorized:
(1) By-Laws. To make, alter and repeal the by-laws of
the Corporation by affirmative vote of two-thirds of the whole
Board of Directors;
(2) Mortgages, Liens, and Pledges. To authorize and
cause to be executed mortgages and liens on the real and personal
property and pledges of personal property of the Corporation
without the assent or vote of the stockholders;
(3) Payments. In its discretion to pay for any property
or rights acquired by the Corporation, either wholly or partly in
money, stock, bonds, debentures or other securities of the
Corporation;
(4) Determination of Amount Constituting Capital. To
fix and determine from time to time what part of the consideration
received by the Corporation on any issue of stock without par value
shall constitute capital;
(5) Bonds, Debentures, and Other Obligations. Without
the assent or vote of the stockholders, to issue bonds, debentures,
or other obligations of the Corporation from time to time, without
limit as to amount, for any of the objects or purposes of the
Corporation and if desired, to secure the same or any part thereof
by mortgage, pledge, deed of trust or otherwise on any part or all
of its property and to cause the Corporation to guarantee bonds,
debentures, notes, indebtedness or other obligations of persons,
firms and/or other corporations;
(6) Convertible Obligations. To create and issue
obligations of the Corporation that shall confer upon the holders
or owners thereof the right to convert the same into shares of
stock of the Corporation, and to fix the rate at which such
obligations may be so converted and the period or periods of time
during which any such right of conversion shall exist, and any
shares of stock issued upon the conversion of any such obligations
shall be conclusively deemed to be fully paid stock and not liable
to any further call or assessment, and the holder thereof shall not
be liable for any further payment in respect thereof;
(7) Performance-Based Obligations. To create and issue
obligations of the Corporation that shall confer upon the holders
or owners thereof the right to receive interests based in whole or
in part upon the financial performance of the Corporation or any
part, division or subsidiary thereof, and to fix the term,
conditions for sale and repurchase, applicable performance
standards, interest rate and such other conditions, rights and
restrictions for such obligations as it shall determine;
(8) Inspections by Stockholders. To determine from time
to time whether and to what extent and at what times and places and
under what conditions and regulations the accounts and books of the
Corporation, or any of them, shall be open to inspection of the
stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation, except as
expressly conferred by the laws of the State of Delaware, unless
and until authorized so to do by resolution of the Board of
Directors, or by resolution of the Common stockholders;
(9) Committees. By resolution or resolutions, passed by
an affirmative vote of two-thirds of the whole Board of Directors,
to designate one or more committees, each committee to consist of
two or more of the directors of the Corporation, which, to the
extent provided in said resolution or resolutions, or in the by-
laws of the Corporation, shall, to the extent permitted by Delaware
Corporation Law, have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, except the powers to amend the by-laws, to declare
dividends and to act contrary to any action previously undertaken
by the Board of Directors, and may have power to authorize the seal
of the Corporation to be affixed to all papers which may require
it, said committee or committees to have such name or names as may
be stated in the by-laws of the Corporation or as may be determined
from time to time by resolution adopted by the Board of Directors;
and
(10) Additional Powers. The Corporation may in its by-
laws confer powers upon its Board of Directors in addition to the
foregoing and in addition to the powers and authorities expressly
conferred upon it by statute.
(C) Limitations on Powers of Board. In limitation of those
powers conferred by statute regarding the matters described in this
paragraph (C), the Board of Directors is authorized to act as
follows:
(1) Substantial Acquisitions. To acquire for the
Corporation any property, rights or privileges at such price and
for such consideration and generally upon such terms and conditions
as it thinks fit; provided, however, an affirmative vote of two-
thirds of the whole Board of Directors shall be required for the
Corporation to make a substantial acquisition not in the primary,
ordinary and regular course of its business activities; and
provided further that for the purposes of this subparagraph (1)
"substantial acquisition" shall mean an acquisition (or a series of
acquisitions which, in light of the period of time over which they
are effected and the intentions of the Board of Directors in making
them, should be characterized for the purposes of this subparagraph
(1) as a single acquisition) with a price (excluding the amount of
any assumed obligation and any amount paid out of the proceeds of a
loan under the terms of either of which the lender has recourse
only against the asset or assets being acquired) in excess of ten
(10%) percent of the total stockholders' equity of the Corporation,
determined on a consolidated basis as of the fiscal year end
immediately preceding such acquisition;
(2) Substantial Dispositions. To dispose of for the
Corporation any property, rights or privileges at such price and
for such consideration and generally upon such terms and conditions
as it thinks fit; provided, however, an affirmative vote of two-
thirds of the whole Board of Directors shall be required for the
Corporation to make a substantial disposition not in the primary,
ordinary and regular course of its business activities; and
provided that for the purpose of this subparagraph (2) "substantial
disposition" shall mean a disposition (or a series of dispositions
which, in light of the period of time over which they are effected
and the intentions of the Board of Directors in making them, should
be characterized for the purposes of this subparagraph (2) as a
single disposition) with a price in excess of ten (10%) percent of
the total stockholders' equity of the Corporation, determined on a
consolidated basis as of the fiscal year end immediately preceding
such disposition; provided further, however, such sale or
disposition shall not constitute a sale or disposition of all or
substantially all of the Corporation's property and assets, the
approval for which is hereinafter provided;
(3) Sale of All or Substantially All Assets. To sell,
lease or exchange all or substantially all of the Corporation's
property and assets, including its good will and its corporate
franchises, upon such terms and conditions and for such
considerations, which may be in whole or in part shares of stock
in, and/or other securities of, any other corporation or
corporations, as said Board of Directors shall deem expedient and
in the best interests of the Corporation, only when and as
authorized by the affirmative vote of the holders of four-fifths of
the Common Stock issued and outstanding;
(4) Offers of Common Stock to Non-Employees. To offer
to sell the Common Stock of the Corporation to persons other than
Employees of the Corporation, in any manner, including but not
limited to a "public offering" within the meaning of the United
States Securities Act of 1933, as it may be amended from time to
time, only when and as authorized by the affirmative vote of the
holders of four-fifths of the Common Stock issued and outstanding;
(5) Change In Stock Price Formula. To change the
formula for determining the Formula Value or the Common Share
Price, only when and as authorized by the affirmative vote of the
holders of four-fifths of the Common Stock issued and outstanding;
(6) Mergers and Consolidations. To merge or consolidate
the Corporation with a corporation other than a Subsidiary, only
when and as authorized by the affirmative vote of the holders of
four-fifths of the Common Stock issued and outstanding; and
(7) Dissolution. To dissolve the Corporation, only when
and as authorized by the affirmative vote of the holders of four-
fifths of the Common Stock issued and outstanding.
(D) Stock Ownership and Transfer Restrictions. The following
restrictions on the ownership and transfer of the Common Stock of
the Corporation are hereby imposed:
(1) Ownership Restrictions. All shares of Common Stock
sold by the Corporation shall be subject to a repurchase agreement,
the terms of which shall be determined by the Board of Directors.
With the prior approval of the Board of Directors and subject to
paragraph (D)(3), Employees, fiduciaries for the benefit of the
Employee's spouse and/or children, corporations one hundred (100%)
percent owned by Employees or Employees and their spouse and/or
children, and fiduciaries for the benefit of such corporations,
charities and fiduciaries for charities designated by any such
persons shall be eligible to own Common Stock of the Corporation.
(2) Transfers to Charitable Organizations. The holders
of the Common Stock may transfer such stock to tax-exempt
charitable organizations approved as such by the Internal Revenue
Service; provided, that any such transfer shall be subject to a
repurchase agreement which provides, in part, that said charitable
owners shall agree not to transfer, assign, pledge, hypothecate, or
otherwise dispose of such stock except in a sale to the
Corporation, and said charitable owners shall at any time upon five
(5) days' written notice and demand by the Corporation sell such
stock to the Corporation. The Corporation shall be obligated to
accept any offer made by the charitable owners to sell such stock
to the Corporation. The purchase price for the Common Stock shall
be the Share Price. Payment of the purchase price shall be made by
the Corporation within sixty (60) days of its acquiring of any such
stock, without interest.
(3) Transfer Restrictions On Common Stock.
(a) Sales to Corporation. The holders of Common
Stock shall not sell, transfer, assign, pledge, hypothecate or
otherwise dispose of such stock except in a sale to the Corporation
or in a transfer to an authorized transferee approved by the Board
of Directors pursuant to subparagraph (D)(1) above or a transfer in
accordance with subparagraph (D)(2) above. Holders of Common Stock
may, at any time on or prior to the 15th day of any calendar month,
offer to sell part or all of their Common Stock to the Corporation
by delivering the certificate or certificates representing such
stock to the Corporation along with a written notice offering such
stock to the Corporation. Such offer must be accepted by the
Corporation, and payment shall be made for such stock within sixty
(60) days after the receipt of such stock and such written notice
by the Corporation, without interest. The rights of redemption
provided for in this subparagraph (D)(3)(a), and each other right
of redemption of Common Stock provided for in this Certificate of
Incorporation, shall be subject to the requirement that no shares
of any class shall be redeemed, either at the option of the holder
thereof or of the Corporation, unless after giving effect to such
redemption there remain outstanding at least 1,000 shares of stock
of the Corporation having full voting power.
(b) Termination. Upon the termination of the
employment of any Employee with the Corporation for any reason
other than death, the Employee or his authorized transferee shall
sell and deliver the Common Stock held by such Employee or his
authorized transferee to the Corporation within ten (10) days after
the date of a written notice from the Corporation to sell and
deliver such stock (a "Repurchase Notice"). The Corporation shall
give such Repurchase Notice within the period commencing on the day
of termination and ending on the 90th day after such termination.
Payment for such stock shall be made within sixty (60) days after
the date of such Repurchase Notice, without interest.
(c) Death. Upon the death of any Employee, the
estate, successor or personal representative of such Employee or
the authorized transferee of such Employee shall sell and deliver
the Common Stock previously held by such Employee or held by his
authorized transferee to the Corporation within ten (10) days after
the date of a written notice from the Corporation to sell and
deliver such stock. The Corporation shall give the notice to sell
and deliver within the period commencing on the day of death of
such Employee and ending on the 180th day after said death. Payment
for such stock shall be made within sixty (60) days after the date
of said notice, without interest. Upon the death of an Employee
holding stock of the Corporation on the day of his death, the
Employee's estate, successor or personal representative and any
authorized transferee of such deceased Employee shall have the
option to defer the purchase by the Corporation of its Common Stock
to a date or dates later than that provided for in this
subparagraph (D)(3) but prior to the January 10th next succeeding
the fiscal year during which the Employee's death occurred.
(d) Ownership of Excessive Amount. Upon a
determination by the Board of Directors that the amount of Common
Stock held by an Employee and/or his authorized transferee is
excessive in view of the Corporation's policy that the level of an
Employee's stock ownership should reflect certain factors,
including but not limited to (i) the relative contribution of that
Employee to the economic performance of the Corporation, (ii) the
effort being put forth by such Employee, and/or (iii) the level of
responsibility of such Employee, the Corporation shall have the
option to purchase from such Employee and/or his authorized
transferee an amount of Common Stock sufficient to decrease the
amount of such stock owned by such Employee or his authorized
transferee to an amount that the Board of Directors, in its sole
discretion, believes is appropriate. In the event that the
Corporation elects to exercise this option, it shall give the
Employee and/or his authorized transferee written notice to that
effect and the Employee and/or his authorized transferee shall sell
and deliver the amount of stock specified in such notice to the
Corporation within ten (10) days after the date of the notice, with
payment to be made for such stock within sixty (60) days after the
date of said notice, without interest.
(e) Pledges. Notwithstanding anything contained in
this subparagraph (D)(3) to the contrary, an Employee may pledge
Common Stock for loans in connection with the ownership of the
Corporation's stock.
(f) Authorized Transferee. For purposes of this
subparagraph (D)(3), the term "authorized transferee" shall mean
any stockholder permitted to own stock of the Corporation pursuant
to paragraph (D)(1) above.
(g) Failures to Meet Time Limits. No failure by
the Corporation, a stockholder, an authorized transferee, or the
estate, successor, or personal representative of a stockholder to
take any action within any time period prescribed by this
subparagraph (D)(3) shall render the Common Stock of the
Corporation transferable other than in conformance with the
provisions of this subparagraph (D)(3) or preclude the Corporation
from exercising its right to purchase any such stock.
(4) Stock Price. The Corporation shall purchase or sell
any share of Common Stock for a price equal to the Common Share
Price. The consideration paid for such Common Stock shall be in
cash or such other form as mutually agreed upon by the Corporation
and the Common stockholder.
(5) Limitations On Amount of Ownership. No more than
ten (10%) percent of the shares of the Common Stock issued and
outstanding shall at any time be owned of record, or voted, by or
for the account of any one Employee as hereinbefore described. For
purposes of calculation of said ten (10%) percent limitations
Common Stock of the Corporation owned by an Employee's spouse,
children, grandchildren, parents, grandparents and spouses of such
persons (collectively, an Employee's "family members"), fiduciaries
for the benefit of an Employee or his family members, fiduciaries
for charities designated by an Employee or his family members, and
any entity which an Employee or his family members have created or
control, directly or indirectly, or in which an Employee or his
family members have a beneficial or reversionary interest, shall be
counted as being owned by the Employee. All calculations regarding
the ten (10%) percent limitation (including both the numerator and
denominator of the calculations) shall be on a fully diluted basis
(i.e., all stock that in the future will be issued upon the
conversion of any then-issued and outstanding Convertible
Debentures of the Corporation shall be included in the
calculations). The ten (10%) percent limitations shall be
calculated as of the 1st day of January of each year, and any
stockholder who owns more Common Stock than the ten (10%) percent
limitation permits shall be so notified by the Corporation and
shall, at the stockholder's option, be permitted to hold the excess
stock until the next succeeding January 1, and on or before said
January 1, the stockholder shall take the action described in
subparagraph (D)(6) below .
(6) Sales of Excess Stock. In the event that any
stockholder through his own action or the action of others becomes
an owner of more than ten (10%) percent, as defined in subparagraph
(D)(5) above, of the Common Stock, he shall offer to the
Corporation, and the Corporation shall purchase within sixty (60)
days of such offer, at the price defined in subparagraph (D)(4)
above, such amount of his stock that is in excess of said ten (10%)
percent limitation. In the event that a stockholder shall fail to
offer such stock to the Corporation within the period described in
subparagraph (D)(5) above, the Corporation shall, within sixty (60)
days following the end of such period, purchase such excess stock
holdings.
(7) Termination of Certain Owners. Any stockholder-
Employee of the Corporation who owns two (2%) percent or more of
the Common Stock issued and outstanding shall not be terminated
from employment of the Corporation except by an affirmative vote of
two-thirds of the whole Board of Directors. The Board of Directors
shall have the right to reduce said two (2%) percent requirement in
the by-laws of the Corporation to a lower percentage requirement by
an affirmative vote of two-thirds of the whole Board of Directors.
For purposes of calculation of this percentage requirement, the
attribution rules specified in paragraph (D)(5) above regarding the
ten (10%) percent limitation on ownership shall apply.
(8) Suspension of Repurchase Duties. Notwithstanding
anything in this ARTICLE SIXTH to the contrary, in the event that
the Board of Directors determines that the Formula Value to be
determined at the end of the fiscal year during which such
determination is made is likely to be less than (i) the Formula
Value determined at the end of the prior fiscal year less (ii) the
aggregate amount of dividends declared on the Common Stock since
the end of the prior fiscal year, the Board may suspend the
Corporation's duty to repurchase shares of Common Stock in
accordance with this paragraph (D)(8). Any such suspension shall
not extend for a period longer than three hundred sixty-five (365)
days from the date of the Board's declaration of suspension. During
any such suspension period, the Corporation shall not repurchase
any shares of Common Stock tendered or required to be tendered for
repurchase pursuant to the second sentence of subparagraph
(D)(3)(a). During any such suspension period, the Corporation shall
continue to repurchase Common Stock tendered to the Corporation
pursuant to any other provision of this Certificate of
Incorporation, but (a) payment for such repurchases shall not be
required until sixty (60) days after the end of the suspension
period, (b) such payment shall be made without interest, and (c)
the repurchase price shall be the Common Share Price determined as
of (i) the end of the prior fiscal year, in the case of a
suspension period that ends before July 1 of the fiscal year,
(provided that such computation of the Share Price shall be reduced
by the amount of dividends per share declared on the Common Stock
since the end of the prior fiscal year), or (ii) in the case of a
suspension period that ends after June 30 of a fiscal year, the end
of the fiscal year during which the suspension period ends.
(9) Non-Redeemable Series. Notwithstanding any other
provision hereof with respect to the Common Stock, in no event
shall (i) any holder of Common Stock, Non-Redeemable Series have
any right to require the Corporation to repurchase such holder's
shares of Common Stock, Non Redeemable Series or be required to
offer such shares to the Corporation for repurchase; or (ii)
Common Stock, Non-Redeemable Series be subject to any redemption.
(E) Payments Where Stock Price Not Yet Computed. If the
price at which the Corporation is to purchase stock pursuant to any
provision in this Certificate of Incorporation has not been
computed within the time period prescribed for payment for such
stock because the preparation of the audited Consolidated Financial
Statements of the Corporation and Consolidated Subsidiaries has not
yet been completed, the Corporation shall, within the time period
prescribed for payment for such stock, make an initial payment in
an amount equal to the price that would have been paid for such
stock if it had been purchased by the Corporation during the next
preceding fiscal year. The balance shall be paid within ten (10)
days after the date on which the price at which the Corporation is
to purchase such stock has been computed. In the event that the
price at which the Corporation is to purchase such stock is less
than the amount paid by the Corporation, in the "initial payment"
provided for in this paragraph (E), the Corporation shall be
entitled to recover the difference between the two amounts. Such
difference shall be paid by the person or entity to whom the
Corporation made the "initial payment" within ten (10) days of the
date of a written notice from the Corporation to pay such amount,
without interest.
(F) Ratification By Stockholders. Any contract, transaction
or act of the Corporation or of the directors, which shall be
ratified by a majority of a quorum of the stockholders then
entitled to vote at any annual meeting or at any special meeting
called for such purpose, shall, so far as permitted by law and by
this Certificate of Incorporation, be as valid and as binding as
though ratified by every stockholder entitled to vote at such
meeting.
(G) Meetings, Offices, and Books Outside State of Delaware.
The stockholders and the Board of Directors may hold their meetings
and the Corporation may have one or more offices outside of the
State of Delaware, and subject to the provisions of the laws of
said state, may keep the books of the Corporation outside of said
state and at such places as may be from time to time designated by
the Board of Directors.
(H) Removal of Directors. At any meeting of the holders of
the Common Stock called for the purpose, any one or more of the
directors may, by a majority vote of the holders of the Common
Stock at the time, be removed from office, with or without cause,
and another director or other directors be elected by such majority
vote of said holders of the Common Stock in the place or places of
the person or persons so removed, to serve for the remainder of his
or their term or terms, as the case may be; provided, however, that
if less than all the directors are to be removed, no individual
director shall be removed without cause when the votes cast against
his removal would be sufficient to elect him if then cumulatively
voted at an annual election of all the directors.
(I) By-Law Provisions for Conduct of Business. The
Corporation may in its by-laws make any other provisions or
requirements for the conduct of the business of the Corporation,
provided the same be not inconsistent with the provisions of this
Certificate of Incorporation, or contrary to the laws of the State
of Delaware. The by-laws may be amended by affirmative vote of two-
thirds of the whole Board of Directors or by affirmative vote of
the holders of two-thirds of the Common Stock issued and
outstanding.
(J) Requirements of Votes Greater Than Required By-Law.
Whenever this Certificate of Incorporation contains provisions
requiring for any corporate action the vote of a larger portion of
the stock or a larger portion of the directors than is required by
the General Corporation Law of the State of Delaware, the
provisions of this Certificate of Incorporation shall govern and
control.
(K) Amendments of Certificate. Subject to any limitations
herein contained, the Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate
of Incorporation, or in any amendment thereto by an affirmative
vote of the holders of two-thirds of the Common Stock issued and
outstanding,, and all rights conferred upon stockholders in said
Certificate of Incorporation or any amendment thereto, are granted
subject to this reservation; provided, however, that the provisions
of this Certificate of Incorporation requiring for action by the
stockholders a vote greater than such two-thirds vote shall not be
amended except by such greater vote; and provided further that this
Paragraph (K) shall not be amended except by an affirmative vote of
the holders of four-fifths of the Common Stock issued and
outstanding.
ARTICLE SEVENTH
LIMITATION OF LIABILITY
A director of this Corporation shall not be personally liable
to the Corporation 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 Corporation
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 Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law
is amended after approval by the stockholders of this ARTICLE
SEVENTH to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law as
so amended. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification.
ARTICLE EIGHTH
DEFINITIONS
As used in this Certificate of Incorporation, the following
meanings (with terms defined in the singular having comparable
meaning when used in the plural and vice versa), unless another
definition is provided or the context otherwise requires:
"Formula Value" means the sum of:
(a) the total stockholders' equity as shown on the
consolidated balance sheet contained in the Consolidated Financial
Statements of the Corporation and Consolidated Subsidiaries,
prepared in conformity with generally accepted accounting
principles applied on a consistent basis for the Corporation and
its consolidated Subsidiaries as of the fiscal year end immediately
preceding the date of determination (the "prior year end") and
audited and certified by an independent firm of certified public
accountants selected and engaged by the Board of Directors; minus
(b) the sum of: (i) the book value of Property, Plant
and Equipment as of the prior year end; plus (ii) the total
stockholders' equity attributable to any issued and outstanding
Preferred Stock, as reflected on the consolidated balance sheet,
plus the amount of any accrued, accumulated and undeclared
dividends thereon, all as of the date of determination.
"Common Share Price" with respect to any share of Common
Stock, means the amount determined by dividing:
(a) the sum of (i) the Formula Value plus (ii) the face
amount of any outstanding Convertible Debentures convertible into
Common Stock , determined as of the fiscal year end immediately
preceding the date of determination (the "prior year end"); by
(b) the sum of (i) the total number of issued and
outstanding shares of Common Stock, plus (ii) the total number of
shares of Common Stock reserved for the conversion of outstanding
Convertible Debentures convertible into Class C Stock, in each case
determined as of the prior year end;
and deducting from the quotient (rounded to the nearest $0.05) the
amount of any dividends per share declared on Common Stock
subsequent to the prior year end.
"Convertible Debenture" means any debenture or other
instrument evidencing indebtedness of the Corporation convertible
at any time into shares of the Common Stock.
"Employee" means an individual employed by (i) the
Corporation, any Subsidiary or Twenty Percent Subsidiary or any
joint venture in which the Corporation and/or any Subsidiary or
Twenty Percent Subsidiary has a twenty percent or more interest
or (ii) Kiewit Coal Properties, Inc. or any subsidiary thereof or
any joint venture in which Kiewit Coal Properties, Inc. or any
such subsidiary has a twenty percent or more interest. An
Employee shall also include any person serving on the Board of
Directors of the Corporation or of any Subsidiary; provided,
however, that such person shall have previously owned stock of
the former parent corporation of the Corporation or the
Corporation as an employee; and, provided further, that such
person shall not be eligible to purchase additional stock of the
Corporation.
"Property, Plant and Equipment" means those assets included
within such classification as reflected on the consolidated balance
sheets contained as a part of the Consolidated Financial Statements
of the Corporation and Consolidated Subsidiaries, that are utilized
in or associated with the Corporation's ordinary and regular course
of construction activities.
"Subsidiary" means a corporation, partnership or other entity
with respect to which the Corporation holds, directly or
indirectly, at least a majority of the issued and outstanding
capital stock or other equity interests, measured in terms of total
dollar value if such entity has outstanding more than one class of
capital stock or other equity interests.
"Twenty Percent Subsidiary" means a corporation, partnership,
or other entity with respect to which the Corporation owns,
directly or indirectly, twenty percent or more of the issued and
outstanding capital stock or other equity interests, measured in
terms of total dollar value if such corporation, partnership or
other entity has outstanding more than one class of capital stock
or other equity interests.
IN WITNESS WHEREOF, PKS Holdings, Inc. has caused this
Restated Certificate of Incorporation, to be signed and attested by
its duly authorized officers as of the 18th day of March, 1998.
PKS HOLDINGS, INC.
By: /s/ Kenneth E. Stinson
Kenneth E. Stinson, President
ATTEST:
By: /s/ Thomas C. Stortz
Thomas C. Stortz, Secretary
EXHIBIT 3
AMENDED AND RESTATED
BY-LAWS
OF
PKS HOLDINGS, INC.
Adopted March 19, 1998
TABLE OF CONTENTS
TO
AMENDED AND RESTATED
BY-LAWS
OF
PKS HOLDINGS, INC.
Sections Page
1-2 Offices............................ 1
3 Seal............................. 1
4-12 Stockholders' Meetings....................... 1
13-16 Directors............................ 2
17 Honorary Directors....................... 3
18 Board Committee....................... 4
19 Executive Committee....................... 4
20 Compensation Committee...................... 5
21 Audit Committee........................ 6
22-23 Compensation of Directors.................... 8
24-27 Meetings of the Board...................... 8
28-37 Officers............................. 8
38 Shares of Stock........................... 10
39 Certificates of Stock...................... 10
40 Transfers of Stock......................... 10
41 Fixing Record Date....................... 11
42 Registered Stockholders...................... 11
43 Lost Certificates......................... 11
44 Checks............................ 11
45 Fiscal Year........................... 11
46-47 Dividends.......................... 11
48-49 Notices........................... 12
50 Amendments........................... 12
51 Indemnification.......................... 12
BY-LAWS
OF
PKS HOLDINGS, INC.
OFFICES
1. The registered office of the corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware, and
the name of the registered agent in charge thereof is The
Corporation Trust Company.
2. The corporation shall also have an office in the City of
Omaha, State of Nebraska, and also offices at such other places as
the board of directors may from time to time designate.
SEAL
3. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words
"Corporate Seal, Delaware." Said seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
STOCKHOLDERS' MEETINGS
4. The annual meeting of the stockholders of the
corporation shall be held at such date, place and time as may be
determined by the board of directors and as may be designated in
the notice of such meeting for the purpose of electing a board of
directors and the transaction of such other business as may
properly be brought before the meeting.
5. Special meetings of the stockholders may be held at such
time and place as shall be stated in the notice of the meeting.
6. The holders of a majority of the stock issued and
outstanding, and entitled to vote thereat, present in person, or
represented by proxy, shall be requisite and shall constitute a
quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute, by the Restated
Certificate of Incorporation or by these By-laws. If, however, such
quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in
person, or by proxy, shall have power to adjourn the meeting from
time to time without notice other than announcement at the meeting,
until a quorum shall be present. At such adjourned meeting at which
a quorum shall be present any business may be transacted which
might have been transacted at the meeting as originally notified.
7. Each stockholder at every meeting of the stockholders
shall be entitled to one vote in person or by proxy for each share
of the capital stock entitled to vote held by such stockholder, but
no proxy shall be voted on after three (3) years from its date,
unless the proxy provides for a longer period.
At each election for directors every stockholder
entitled to vote at such election shall have the right to vote, in
person or by proxy, the number of shares owned by him for as many
persons as there are directors to be elected and for whose election
he has a right to vote, or to cumulate his votes by giving one
candidate as many votes as the number of such directors multiplied
by the number of his shares shall equal, or by distributing such
votes on the same principle among any number of such candidates.
8. Notice of the annual meeting of the stockholders shall
be given by the Secretary or an Assistant Secretary of the
corporation as required by law.
9. A complete list of the stockholders entitled to vote at
every meeting of the stockholders shall be prepared, at least ten
(10) days before every meeting, by the officer who has charge of
the stock ledger of the corporation. The list shall be arranged in
alphabetical order and shall show the address of each stockholder
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where the
meeting is to be held. This list shall also be produced and kept at
the time and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present.
10. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called by
the chairman of the board and shall be called by the chairman of
the board or secretary at the request in writing of a majority of
the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital
stock of the corporation issued and outstanding and entitled to
vote. Such request shall state the purpose or purposes of the
proposed meeting.
11. Business transacted at all special meetings shall be
confined to the objects stated in the call.
12. Written notice of a special meeting of stockholders,
stating the time and place and object thereof, shall be served upon
or mailed at least ten (10) days before such meeting to each
stockholder entitled to vote thereat at such address as appears on
the books of the corporation.
DIRECTORS
13. The number of directors of the corporation which shall
constitute the whole board shall be such number, not less than ten
(10) nor more than fifteen (15), as the board of directors may from
time to time fix by resolution. The directors shall be elected at
the annual meeting of the stockholders, and each director shall be
elected to serve until his successor shall be elected and shall
qualify. Newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of
the directors then in office, and the directors so elected shall
hold office until the next annual election and until their
successors are duly elected and shall qualify.
13A. Nominations for the election of directors shall be made
by the board of directors or a stockholder entitled to vote for the
election of directors. However, a stockholder may nominate one or
more persons for election as directors at a meeting held to elect
directors only if written notice of such stockholder's intent to
make each such nomination has been received by the Secretary of the
corporation not later than (i) with respect to an election to be
held at the annual meeting of stockholders, sixty (60) days before
such meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders, the close of business on the
seventh day following the date on which notice of such meeting is
first given to stockholders.
Each such notice from the stockholder to the Secretary shall
set forth: (a) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be
nominated; (b) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) the
written consent of each nominee to serve as a director of the
corporation if so elected; (d) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or persons (naming each such person) pursuant to which
the nomination or nominations are to be made by the stockholder;
(e) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a preliminary
proxy statement filed pursuant to the proxy rules of the Securities
and Exchange Commission, had the nominee been nominated, or
intended to be nominated, by the board of directors; and (f) such
additional information about each such nominee as the board of
directors may reasonably request to determine the eligibility of
the nominee. The chairman of the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the
foregoing procedure.
14. The directors may hold their meetings and keep the books
of the corporation outside of Delaware at the office of the
corporation in the City of Omaha, Nebraska, or at such other places
as they may from time to time determine.
15. If the office of any director or directors becomes
vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, a majority of
the remaining directors, though less than a quorum, may choose a
successor or successors, who shall hold office for the unexpired
term in respect to which such vacancy occurred or until the next
election of directors. However, if the stockholders remove a
director, the vacancy shall be filled only upon the election of a
successor director by the stockholders.
16. The property, business and affairs of the corporation
shall be managed by its board of directors which may exercise all
lawful powers of the corporation and do all such lawful acts and
things as are not by statute or by the Restated Certificate of
Incorporation or by these By-laws directed or required to be
exercised or done by the stockholders.
HONORARY DIRECTORS
17. The board of directors by resolution may create an
advisory board of directors and appoint one or more persons to such
advisory board of directors. Persons appointed to said advisory
board shall be considered honorary directors of the corporation.
Members of said advisory board shall be entitled to attend regular
and special meetings of the board of directors and participate in
such meetings by their offering advice and consultation; but
members of said advisory board shall not be entitled to vote on any
matter being considered by the board of directors. A member of the
advisory board of directors shall not be considered in any way a
member of the board of directors or an officer or employee of the
corporation.
BOARD COMMITTEES
18. The board of directors may by resolution passed by an
affirmative vote of two-thirds of the whole board designate
committees of the board, each consisting of two (2) or more of its
members. Such committees shall include, but are not limited to, an
executive committee, a compensation committee, and an audit
committee. The board of directors shall designate the chairman of
each committee and all of the members of the committee shall serve
at the pleasure of the board of directors.
A majority of each committee shall constitute a quorum. Each
committee shall adopt its own rules of procedure and shall meet at
stated times as provided by its rules of procedure or upon the call
of the chairman of the committee or of any two members of the
committee. Notice of each such meeting, stating the place, date,
and hour thereof, shall be served personally on each member of the
committee, or shall be mailed, telegraphed or telephoned to his
address on the books of the corporation, at least twenty-four (24)
hours before the meeting. A notice need not state the business
proposed to be transacted at the meeting. No notice of the time or
place of any meeting of the committee need be given to any member
thereof who attends in person or who, in writing executed and filed
with the records of the meeting either before or after the holding
thereof, waives such notice. No notice need be given of an
adjourned meeting of the committee. Meetings of the committee may
be held at such place or places, either within or outside of the
City of Omaha, State of Nebraska, as the committee shall determine,
or as may be specified or fixed in the respective notices or
waivers thereof. Each committee shall keep appropriate minutes of
its proceedings and report all significant actions to the board of
directors at the regular meetings thereof held next after such
actions have been taken. Vacancies on such committee shall be
filled by the board of directors. Members of such committee may be
removed by the board of directors at any time with or without
cause.
EXECUTIVE COMMITTEE
19. The executive committee shall have and may exercise all
or any of the powers of the board of directors in the management of
the normal and ordinary business and affairs of the corporation at
all times when the board of directors is not in session, and in
connection therewith, the executive committee shall have full
charge of the property, interest, business and transactions of the
corporation. Specifically, but not by way of limitation, the
executive committee shall have the following powers, duties and
responsibilities while the board of directors is not in session:
(a) To fix all remuneration of the officers and employees of
the corporation, other than its executive officers,
within the guidelines recommended by the management
compensation committee and approved by the board of
directors.
(b) To maintain general charge and control of all accounting
and data processing affairs of the corporation.
(c) To maintain general charge and control of all major
financial arrangements, and of acquisitions and
dispositions of property which are not in the ordinary,
routine, and regular course of business of the
corporation and to make recommendations as to all
matters within the purview of this subparagraph (c) to
the board of directors.
(d) To maintain general charge of and to supervise the
financial affairs of the corporation, including the
budgetary, accounting, and statistical methods and
procedures of the company, financial policies, practices
and problems of the corporation and to make
recommendations as to such financial or related matters
as shall be referred to it by the board of directors, or
which shall be raised by the committee on its own
initiative.
(e) To supervise the borrowing of money, and the issuance of
bonds, notes, or other obligations and evidences of
indebtedness therefor.
(f) To assure compliance with ethical standards.
(g) To supervise the investment of funds of this corporation
in the purchase and acquisition of stocks, bonds, and
other securities, in the name and in behalf of this
corporation, and to sell and dispose of the stocks,
bonds, and other securities owned by this corporation,
at such times and upon such terms as it may deem wise
and advantageous to this corporation.
The executive committee shall not have the power or authority of
the board of directors in reference to amending the Restated
Certificate of Incorporation, amending the By-laws, declaring
dividends, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution, authorizing the issuance of stock
or to act contrary to any action previously undertaken by the board
of directors, and shall not have the specific powers conferred upon
other committees by these By-laws or by resolution of the board
pursuant to the Restated Certificate of Incorporation of the
corporation. The executive committee shall not have the authority
to inaugurate reversals of, or departures from, fundamental
policies and methods of conducting the business of the corporation,
as prescribed by the board. It shall have the power to authorize
the seal of the corporation to be affixed to all papers and
documents which may require it. All actions of the executive
committee shall be subject to revision or alteration by the board
of directors provided that no rights or acts of third parties shall
be affected by any such revision or alteration.
COMPENSATION COMMITTEE
20. The compensation committee shall consist entirely of
directors who are neither holders of Common Stock nor employees of
the corporation or its subsidiaries. Under the direction of the
board of directors, the committee shall have the following
functions:
(a) To review, and approve or disapprove, all compensation
of whatever nature to be paid to the executive officers
of the corporation, i.e. the employee directors of the
corporation and any other persons whom the board of
directors specifically designate as executive officers.
(b) To review the ownership of the corporation's securities
by employee stockholders and make determinations
concerning excessive stock ownership pursuant to Article
Sixth (D)(3)(d) of the Restated Certificate of
Incorporation.
(c) At the specific request of the board of directors or the
chairman of the board, conduct investigations, make
recommendations, or perform other functions as
requested.
(d) To recommend to the board of directors the compensation
ranges of the management personnel of the corporation.
(e) To make recommendations to the board of directors about
the salaries and bonuses to be paid to all key
management personnel and the terms and conditions of
their employment.
(f) To make recommendations to the board of directors about
any other plans affecting employees' remuneration,
including fringe benefits, as well as ownership of the
corporation's stock and convertible debentures.
(g) To review and approve all requests by stockholders of
the corporation to transfer stock of the corporation to
transferees within the guidelines established by Section
38 of these By-laws.
AUDIT COMMITTEE
21. None of the members of the audit committee shall be
directly involved in the supervision or management of the financial
affairs of the corporation or any of its subsidiaries. The audit
committee shall have the following duties and responsibilities
while the board of directors is not in session:
(1) To recommend to the board of directors for appointment,
retention or termination by the board of directors
independent public accountants to audit the books,
records, and accounts of the corporation.
(2) To examine and make recommendations to the board of
directors with respect to the overall scope of the audit
conducted by the corporation's independent public
accountants, the audit procedures which will be followed
during the course of the audit, their final opinion and
the compensation to be paid for the services of the
independent public accountants.
(3) To review all recommendations made by the corporation's
independent public accountants to the board of directors
with respect to the accounting methods used by the
corporation or any other accounting matters and to
advise the board of directors with respect thereto.
(4) To review the following matters with the independent
public accountants, upon completion of their audit:
(a) the financial statements and any report or opinion
proposed to be rendered in connection therewith,
(b) the independent public accountant's perceptions of
the company's financial and accounting personnel,
(c) the cooperation which the independent public
accountants receive during the course of their
audit,
(d) the extent to which the resources of the company
were or should be utilized to minimize the audit
fee,
(e) any significant transactions which were not in the
ordinary, routine, and regular course of business
of the corporation,
(f) any change in accounting principles, policies or
standards,
(g) all significant adjustments proposed by the
independent public accountants,
(h) general policies and procedures utilized by the
corporation with respect to internal auditing and
financial controls, and
(i) any recommendations which the independent
accountants may have with respect to internal
financial controls, choice of accounting policies
and principles, or management reporting systems.
(5) To meet with the company's financial and accounting
staff periodically to review and discuss the scope of
internal accounting procedures and controls then in
effect and the extent which any recommendations made by
the internal audit department or by the independent
public accountants have been implemented.
(6) To meet with appropriate internal audit department
personnel periodically to review the audit results and
plans, and evaluate the internal audit department's
effectiveness. The audit committee shall emphasize the
policy pursuant to which the internal audit department
reports to the audit committee, in order to protect such
independence as is necessary to work in compliance with
recognized standards of internal auditing.
(7) To direct and supervise any investigation of any matter
brought to its attention within the scope of its duties.
The audit committee may retain outside consultants in
connection with any such investigation.
(8) To prepare and present to the board of directors a
report covering its activities twice yearly at regular
board meetings, specified by board resolution, or more
often, when considered necessary, to report a material
irregularity.
COMPENSATION OF DIRECTORS
22. No stated salary or other compensation for services as a
director shall be paid to a director who (a) is a stockholder of
this corporation and (b) holds a corporate officer position of this
corporation. Any director without these qualifications, by
resolution of the board, may be paid an annual sum for services as
a director and such director may also be paid a fixed sum and
expenses for each board meeting attended. A director shall not be
precluded from serving the corporation in any other capacity and
receiving compensation therefor.
23. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
MEETINGS OF THE BOARD
24. The first meeting of each newly elected board shall be
held at Omaha, Nebraska after the adjournment of the annual
stockholders' meeting or at such other time and place either within
or without the State of Delaware as shall be fixed by the newly
elected directors, and no notice of such meeting shall be
necessary.
25. Regular meetings of the board may be held at such places
within or without the State of Delaware and at such times as the
board may from time to time determine, and if so determined notices
thereof need not be given.
26. Special meetings of the board may be called by the
chairman of the board on three (3) days' notice to each director,
either personally or by mail or by telegraph; special meetings
shall be called by the chairman of the board of secretary in like
manner and on like notice on the written request of two (2)
directors.
27. At all meetings of the board of directors a majority of
the whole board of directors shall constitute a quorum for the
transaction of business and the affirmative vote of a majority of
the whole board shall be required to constitute the act of the
board of directors, except as may be otherwise specifically
provided by statute or by the Restated Certificate of Incorporation
or by these By-laws.
OFFICERS
28. The officers of the corporation shall be a president,
vice president, secretary and treasurer. In addition the board of
directors may elect a chairman of the board, one or more vice
chairmen of the board, a chairman of any committee designated by
the board, additional vice presidents, one or more of whom may be
executive vice presidents, one or more assistant vice presidents, a
controller, one or more assistant secretaries, assistant
treasurers, assistant controllers and such other subordinate
officers, and may appoint such other agents, as the board of
directors may deem necessary.
29. The president, vice president, secretary and treasurer
shall be elected annually by the board of directors at the first
meeting of the board following the stockholders' annual meeting, or
as soon thereafter as is conveniently possible. Other officers of
the corporation may be elected by the board of directors from time
to time. Agents of the corporation may be appointed by the board of
directors from time to time. Each officer shall serve until his
successor shall have been elected and qualified, or until his
death, resignation or removal.
30. Any officer or agent may be removed from office, with or
without cause, at any time by the affirmative vote of a majority of
the board of directors then in office.
31. Any vacancy in any office from any cause may be filled
for the unexpired portion of the term by the board of directors.
32. The compensation of all executive officers of the
corporation shall be fixed by the executive compensation committee
of the board of directors. The compensation of all other officers
of the corporation shall be fixed by the executive committee of the
board of directors within the compensation ranges recommended by
the management compensation committee and approved by the board of
directors. No executive officer shall be ineligible to receive such
compensation by reason of the fact that he is also a director of
the corporation and receiving compensation therefor.
33. The board of directors shall determine who shall preside
at all meetings of the board of directors and shall also determine
who shall preside at all meetings of the stockholders.
34. The officers of the corporation shall hold such powers
and perform such duties as from time to time may be assigned them
by the board of directors.
35. The chairman of the board, vice chairman of the board,
chairman of the executive committee of the board, president, vice
presidents, including the executive vice presidents, and assistant
vice presidents, shall be empowered to sign contracts, bids,
proposals, certificates and other instruments of the corporation.
The secretary and assistant secretaries shall be empowered to
attest to such documents.
36. The board of directors may from time to time delegate
the powers and duties of any officer to any other officer, director
or other person whom it may select.
37. Any officer, agent or employee of the corporation, if so
required by the board of directors, shall be bonded for the
faithful performance of his duties, with such penalties, conditions
and security as the board may require.
SHARES OF STOCK
38. The following restrictions on the ownership and transfer
of the Common Stock of the corporation are hereby imposed:
(1) Shares of Common Stock may be sold by the corporation
only to employees. With the prior approval of the board
of directors, an employee owning such stock having a
value of $2,000,000 or more may transfer stock (a) to a
fiduciary for the benefit of members of the stockholder-
employee's spouse and/or children, (b) to a corporation
100 percent owned by the stockholder-employee or the
stockholder-employee and his spouse and/or children, or
(c) to a fiduciary for the benefit of such a
corporation; provided, however, that no employee may
have in existence at any one time more than four trusts
owning shares of Common Stock of the corporation. With
the prior approval of the board of directors, Common
stockholders may transfer stock to a tax-exempt
charitable organization approved as such by the Internal
Revenue Service.
(2) Common stockholder-employees may pledge such stock for
loans in connection with the ownership of the
corporation's stock.
(3) All Common Stock of the corporation shall be issued and
held at all times subject to the corporation's standard
applicable repurchase agreements.
CERTIFICATES OF STOCK
39. The certificates of stock of the corporation shall be
numbered and shall be entered in the books of the corporation as
they are issued. They shall exhibit the holder's name and number of
shares and shall be signed by the president or a vice president and
the treasurer or an assistant treasurer, or the secretary or an
assistant secretary. Any or all of the signatures on the
certificate may be by facsimile. They shall have noted on their
face or back a reference to any repurchase agreement to which the
shares of stock they represent are subject. If the corporation has
a transfer agent or an assistant transfer agent or a transfer clerk
acting on its behalf and a registrar, the signature of any such
officer may be by facsimile. There shall be set forth on the face
or back of the certificates of stock of the corporation a statement
that the corporation will furnish without charge to each
stockholder who so requests, a description of the powers,
designations, preferences and relative, participating, optional or
other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences
and/or rights.
TRANSFERS OF STOCK
40. Subject to the transfer restrictions applicable thereto,
upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to
issue a new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books.
FIXING RECORD DATE
41. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty
days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record
date for the adjourned meeting.
REGISTERED STOCKHOLDERS
42. The corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof, and, accordingly, shall not be bound to recognize any
equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of
Delaware.
LOST CERTIFICATES
43. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have
been lost or destroyed, upon the making of an affidavit of the fact
by the person claiming the certificate of stock to be lost or
destroyed. When authorizing such issue of a new certificate or
certificates, the board of directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of
such lost or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall
require and/or give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been
lost or destroyed.
CHECKS
44. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such
other person or persons as the board of directors may from time to
time designate.
FISCAL YEAR
45. The fiscal year shall end on the last Saturday of
December in each year.
DIVIDENDS
46. Dividends upon the capital stock of the corporation,
subject to the provisions of the Restated Certificate of
Incorporation, if any, may be declared by the board of directors at
any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock.
47. Before payment of any dividend there may be set aside
out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve fund to meet contingencies,
or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may abolish any
such reserve in the manner in which it was created.
NOTICES
48. Whenever under the provisions of these By-laws notice is
required to be given to any director or stockholder, it shall not
be construed to mean personal notice, but such notice may be given
in writing, by either personal delivery or mail. If mailed, notice
is given when deposited in the United States mail, postage prepaid,
directed to the stockholder or director at his address as it
appears on the records of the corporation. No notice is required to
be given to a stockholder to whom notices of two consecutive annual
meetings (and any other written notice sent between those meetings)
have been mailed addressed to him at his address as shown on the
corporate records and have been returned undeliverable.
49. Any notice required to be given under these By-laws may
be waived in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein. Any
person in attendance at any meeting in person or by proper proxy
shall be deemed to have duly waived any notice thereof.
AMENDMENTS
50. These By-laws may be amended by the affirmative vote of
two-thirds of the whole board of directors or by the affirmative
vote of the holders of two-thirds of the Common Stock issued and
outstanding
INDEMNIFICATION
51. (a) Actions, Suits or Proceedings Not by or in the
Right of the Corporation. The corporation shall 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 the corporation) by reason of
the fact that he is or was a director, officer or employee of the
corporation, or is or was serving at the request of the corporation
as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding (including appeals)
if he acted in good faith and in a manner he 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 conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
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 reasonable cause to believe his conduct was
unlawful.
(b) Actions or Suits by or in the Right of the
Corporation. The corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer or employee of the
corporation, or is or was serving at the request of the corporation
as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit
(including appeals) if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation and except that no indemnification shall be made
under this paragraph (b) in respect of any claim, issue or matter
as to which the person seeking indemnification shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such indemnification which the Court of Chancery or
such other court shall deem proper. No indemnity shall be paid
under this paragraph (b) with respect to any claim, issue or matter
arising out of any action by the person seeking indemnification
which was knowingly fraudulent or deliberately dishonest or which
involved willful misconduct, or arising out of such person's
gaining any personal profit or advantage to which he was not
legally entitled.
(c) Indemnification Against Expenses of Successful
Party. Notwithstanding the other provisions of this Section 51, to
the extent that a director, officer or employee of the corporation
has been successful on the merits or otherwise, including the
dismissal of an action without prejudice, in defense of any action,
suit or proceeding or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Advances of Expenses. Expenses incurred by an
officer or director in defending a civil or criminal action, suit
or proceeding shall be paid by the corporation in advance of the
final disposition of such action, suit or proceeding if the person
seeking the advance shall undertake to repay such amount in the
event that it is ultimately determined, as provided herein, that
such person is not entitled to indemnification. Such expenses
incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems
appropriate.
(e) Right to Indemnification Upon Application;
Procedure Upon Application. Any indemnification under paragraphs
(a), (b), or (c), or advance under paragraph (d) of this Section
51, shall be made promptly, and in any event within ninety days of
a claim under paragraph (a), (b), or (c) and within thirty days of
a claim under paragraph (d), upon the written request of the person
seeking the indemnification or advance, unless with respect to
applications under paragraph (a) or (b) a determination is made
within ninety days (i) by the board of directors by a majority vote
of a quorum consisting of directors who were not parties to such
action suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the shareholders, that such person acted in
bad faith or in a manner that such person did not believe to be in
or not opposed to the best interests of the corporation, or with
respect to any criminal proceeding, that such person believed or
had reasonable cause to believe that his conduct was unlawful. In
the event that no quorum of disinterested directors is obtainable,
the board of directors shall promptly direct that independent legal
counsel shall decide whether the person seeking the indemnification
acted in the manner set forth in paragraphs (a) and (b). The right
to indemnification and advances granted by this Section 51 shall be
enforceable in any court of competent jurisdiction, if the
corporation denies the claim, in whole or in part, or if no
disposition of such claim is made within the ninety or thirty day
time period specified in this paragraph (e). In any action to
enforce the rights to indemnification and advancement of expenses
created by this Section 51, a denial of the claim by the
corporation shall not create any presumption that the person
bringing the action did not act in a manner that would entitle him
to such indemnification and advancement of expenses. In any such
action, or in any suit by the corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of
proving that the person seeking indemnification or an advancement
of expenses is not entitled to such indemnification or advancement
of expenses, under this Section 51 or otherwise, shall be on the
corporation. Expenses incurred in successfully establishing a right
to indemnification or advances, in whole or in part, in any such
proceeding shall also be indemnified by the corporation.
(f) Non-Exclusivity of Rights; Extent and Nature of
Rights. The indemnification and advancement of expenses provided by
this Section 51 shall not be deemed exclusive of any other rights
to which any person seeking indemnification or advancement of
expenses may be entitled under any by-laws, agreement, vote of
shareholders or disinterested directors or otherwise, both as to
action in his 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 or employee and
shall inure to the benefit of the heirs, executors and
administrators of such a person. All rights to indemnification and
advances of expenses under this Section 51 shall be deemed to be
provided by a contract between the corporation and the director,
officer or employee who serves in such capacity at any time while
these By-laws are in effect, and shall inure to the benefit of such
person, his heirs, personal representatives, and estate, and shall
be binding on any successor to the corporation. Neither any repeal
or modification of these By-laws nor the merger or consolidation of
the corporation with any other entity shall affect any rights or
obligations in effect at the time of the repeal, modification,
merger or consolidation. Notwithstanding any other provisions of
this Section 51, except as provided in paragraph (e) hereof with
respect to proceedings to enforce rights to indemnification, the
corporation shall not indemnify any person in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized by the board of
directors of the corporation.
(g) Other Enterprises, Fines, and Serving at
Corporation's Request. For purposes of this Section 51, references
to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan; and references to
"serving at the request of the corporation" shall include any
service as a director, officer or employee of the corporation which
imposes duties on, or involves services by, such director, officer
or employee with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good
faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this Section 51.
(h) Savings Clause. If this Section 51 or any portion
thereof shall be invalidated on any ground by any court of
competent jurisdiction, then the corporation shall nevertheless
indemnify each agent of the corporation as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, to the full extent
permitted by any applicable portion of this Section 51 that shall
not have been invalidated or by any applicable law.
EXHIBIT 99
STOCK REPURCHASE AGREEMENT
FOR EMPLOYEE STOCKHOLDERS
THIS AGREEMENT is made on _________________, 1998, between
__________________________________________________ (the
"Stockholder") and PETER KIEWIT SONS', INC., a Delaware
corporation (the "Corporation").
WHEREAS, the Corporation's Restated Certificate of
Incorporation sets forth certain restrictions on the ownership
of shares of its Common Stock ("Stock"); and
WHEREAS, the Stockholder desires to own Stock subject to the
terms and restrictions set forth in this Agreement and in the
Corporation's Restated Certificate of Incorporation.
NOW THEREFORE, in consideration of the issuance of Stock to
the Stockholder and for other good and valuable consideration,
the receipt and sufficiency of which is acknowledged by each
of the parties hereto, the Stockholder and the Corporation
agree as follows:
(1) Stock Subject to Agreement. Unless otherwise specifically
set forth in a separate written agreement between the
Corporation and the Stockholder, this Agreement shall apply to
all Stock issued to the Stockholder on or before the date of
this Agreement and any additional shares of Stock which are
issued to the Stockholder after the date of this Agreement.
This Agreement supersedes any previous agreement between the
Corporation and the Stockholder relating to such Stock and the
sale or repurchase of such Stock by the Corporation.
(2) Prohibited Transfers. Except as specifically provided in
this Agreement, the Stockholder shall not sell, assign, give,
bequeath, pledge, or otherwise transfer any or all of the
Stockholder's Stock by any means, whether voluntary or
involuntary. Any such attempted sale or transfer shall be void
and of no force or effect. If such transfer is attempted, the
Corporation shall give written notice to the Stockholder to
sell and deliver all of such Stock to the Corporation within
90 days after the date on which the Corporation receives
actual notice of the attempted or proposed transfer.
(3) Voluntary Sales to Corporation. The Stockholder may sell
all or part of the Stockholder's Stock to the Corporation by
delivering to the Corporation the certificates representing
the Stock to be sold with a written notice stating the
Stockholder's desire to sell such Stock. The Corporation will
accept such notice only during the first fifteen days of each
calendar month. Notices received thereafter will be deemed to
have been received on the first day of the following month.
The Corporation shall purchase any Stock so offered. The
Stockholder's right to sell and the Corporation's duty to
repurchase Stock are subject to section 17 of this Agreement.
(4) Corporation's Option to Purchase All Shares. If the
Stockholder attempts to make a prohibited transfer of, or
voluntarily sells to the Corporation, part of the
Stockholder's Stock, the Corporation shall have the option to
purchase all or any part of the Stockholder's remaining Stock.
The Corporation may exercise this option within 90 days after
(a) the date of the written notice to the Stockholder referred
to in section 2 in the case of an attempted prohibited
transfer, or (b) the receipt of the certificates and written
notice referred to in section 3 in the case of a voluntary
sale to the Corporation. The Corporation may exercise such
option by giving the Stockholder written notice to sell and
deliver all or part of the Stockholder's remaining Stock, as
specified in such notice.
(5) Termination of Employment. Within 90 days after the
termination of the Stockholder's employment for any reason
other than death, the Corporation shall give a written notice
to the Stockholder to sell and deliver all of such
Stockholder's Stock to the Corporation. For the purpose of
this Agreement, "employment" means employment by the
Corporation, one of its subsidiaries, a joint venture in which
the Corporation and/or its subsidiaries have a 20 percent or
more interest, Kiewit Coal Properties, Inc. or any subsidiary
thereof or any joint venture in which Kiewit Coal Properties,
Inc. or any such subsidiary has a 20 percent or more interest.
"Subsidiaries" of the Corporation are any corporation in
which this Corporation owns directly or indirectly at least 20
percent of the outstanding capital stock, based on the total
dollar value of outstanding stock if there is more than one
class of stock outstanding. "Subsidiaries" of Kiewit Coal
Properties, Inc. are any corporation in which Kiewit Coal
Properties, Inc. owns directly or indirectly at least a
majority of the outstanding capital stock, based on the total
dollar value of outstanding stock if there is more than one
class of stock outstanding.
(6) Death.
(a) Within 180 days after the death of the Stockholder, the
Corporation shall give a written notice to the Stockholder's
successors or the personal representative of the Stockholder's
estate to sell and deliver all of such Stockholder's Stock to
the Corporation.
(b) Notwithstanding section 11 of this Agreement, the
deceased Stockholder's successors or the personal
representative of the Stockholder's estate shall have the
option to fix one or more alternate dates for the sale of the
Stock by giving written notice of such dates to the
Corporation and identifying the shares of Stock to be sold on
such dates. Notice of any alternate sales dates must be given
within 180 days after the death of the Stockholder or within
10 days after the date of the Corporation's notice to sell and
deliver under giver paragraph (a), above, whichever comes
first. The earliest alternate sale date may be the date of the
notice given by the representative under this paragraph (b)
and the latest sale date shall be the tenth day of January
following the end of the fiscal year of the Corporation during
which the Stockholder died. The stock certificates
representing the Stock to be sold on a particular date shall
be delivered to the Corporation on or before such date.
(7) Authorized Transfers and Pledges.
(a) With the prior approval of the Board of Directors, the
Stockholder may transfer Stock to a tax-exempt charitable
organization approved as such by the Internal Revenue Service.
(b) With the prior approval of the Board of Directors, a
Stockholder may transfer Stock to: (i) a fiduciary for the
benefit of the members of the Stockholder's immediate family,
(ii) a corporation 100 percent owned by the Stockholder or the
Stockholder and their spouse and/or children, or (iii) a
fiduciary for the benefit of such a corporation.
(c) As a condition precedent to transfer, each transferee
under (a) or (b) above must sign a new repurchase agreement in
a form satisfactory to the Corporation.
(d) The Stockholder may pledge Stock for loans in connection
with the ownership of Stock.
(8) Excessive Amount. Under Article Sixth, subparagraph
(D)(3)(d) of the Corporation's Restated Certificate of
Incorporation, upon a determination by the Board of Directors
that the amount of Stock held by the Stockholder is excessive
in view of the Corporation's policy that the level of
Stockholder's stock ownership should reflect certain factors,
including but not limited to (a) the relative contribution of
that Stockholder to the economic performance of the
Corporation, (b) the effort being put forth by such
Stockholder, and/or (c) the level of responsibility of such
Stockholder, the Corporation shall have the option to purchase
from such Stockholder an amount of Stock sufficient to
decrease the amount of Stock owned by such Stockholder to an
amount that the Board of Directors, in its discretion,
believes is appropriate. In the event that the Corporation
elects to exercise this option, it shall give the Stockholder
written notice to sell and deliver to the Corporation the
amount of Stock specified in such notice.
(9) Purchase Price. Article Sixth, subparagraph (D)(4) of the
Corporation's Restated Certificate of Incorporation, provides
that, if the Corporation is obligated to repurchase shares of
Stock, the purchase price shall be the Common Share Price.
Article Eighth of the Corporation's Restated Certificate of
Incorporation sets forth definitions of the terms "Common
Share Price", as well as "Formula Value", and other terms
relevant to calculating the price applicable to any particular
repurchases. These provisions of the Corporation's Restated
Certificate of Incorporation are incorporated herein by
reference.
(10) Payment. Subject to section 11 of this Agreement:
(a) The Corporation shall make payment for any Stock it
purchases within 60 days after (i) the date upon which the
Corporation receives such Stock in the event of a voluntary
sale by the Stockholder under section 3 of this Agreement,
(ii) the date of the sale of such Stock specified in any
notice given by the Stockholder's successors or personal
representative under section 6(b) of this Agreement, or (iii)
the date of the Corporation's written notice to sell and
deliver such Stock in the event of any other sale under this
Agreement.
(b) The Corporation shall be authorized to deduct from the
payment of the purchase price for Stock sold by the
Stockholder any amount owed by the Stockholder to the
Corporation and/or to any pledgee of such Stock.
(c) The Corporation shall not be obligated to pay any
interest on any amounts to be paid under this Agreement.
(d) If the per share price at which the Corporation is to
purchase Stock has not been computed within the time
prescribed for payment under this Agreement because the
preparation of the audited Consolidated Financial Statements
of the Corporation and Consolidated Subsidiaries has not yet
been completed, the Corporation shall make an "initial
payment" within the time period prescribed for payment for
such Stock, using the per share price applicable to purchases
of Stock during the preceding fiscal year. If the per share
price for purchases during the current year is determined to
be greater than that for the preceding year, the Corporation
shall pay the difference between the initial payment and the
actual amount entitled to be received under the current per
share price within 10 days after the date upon which the per
share price for the current year is completed. If the per
share price for purchases during the current year is
determined to be less than that for the preceding year, the
person or entity to whom the initial payment was made shall
repay the difference between the initial payment and the
actual amount entitled to be received under the current per
share price within 10 days after the date of a written notice
from the Corporation requiring payment of such amount.
(11) Surrender of Stock. Except as provided in section 6(b)
of this Agreement, the Stockholder or the Stockholder's
successors or the personal representative of the Stockholder's
estate must sell and deliver stock certificates to the
Corporation within 10 days after the date of the Corporation's
notice to sell and deliver such Stock. Any stock certificate
to be sold to the Corporation must be endorsed in blank or
accompanied by appropriate stock powers executed in blank, and
accompanied by such other evidence of authority as the
Corporation may reasonably require. In the event of failure to
deliver stock certificates with required evidence of authority
within the time periods specified, the Corporation's Secretary
shall cancel each certificate on the books of the Corporation
and such shares of Stock shall be deemed no longer
outstanding. The holder of canceled shares of Stock shall have
no further interest as a stockholder of the Corporation with
respect to such shares of Stock except the right to receive
the purchase price.
(12) Notices. Any notices under this Agreement shall be in
writing and shall be sufficient if delivered in person or sent
by certified mail, return receipt requested. The notice to the
Stockholder or the Stockholder's successors or personal
representative, if mailed, shall be sent to the Stockholder's
last known address. The notice to the Corporation shall be
delivered or mailed to the Secretary, Peter Kiewit Sons' Inc.,
1000 Kiewit Plaza, Omaha, Nebraska 68131.
(13) Governing Law. This Agreement shall be governed by the
laws of the State of Delaware.
(14) Failure to Meet Times. No failure by the Corporation, the
Stockholder, or the successors or personal representative of
the Stockholder's estate to take any action within any time
period prescribed by this Agreement shall render the Stock of
the Corporation transferable other than in conformance with
the provisions of this Agreement or preclude the Corporation
from exercising its right to purchase or cancel any such
Stock.
(15) Binding Effect. This Agreement is binding on the
Stockholder's transferees, pledgees, heirs, successors,
personal representatives, and assigns, and upon the successors
and assigns of the Corporation.
(16) Severability. If any portion of this Agreement is held
invalid, that invalidity shall not affect the remaining
portions which can be given effect without the invalid
portion.
(17) Suspension of Repurchase Duties. Article Sixth,
subparagraph (D)(8) of the Corporation's Restated Certificate
of Incorporation provides that the Board of Directors may
suspend the Corporation's obligation to repurchase Stock for a
period of not longer than 365 days.
(18) Restated Certificate of Incorporation. The Corporation's
Restated Certificate of Incorporation contains additional
restrictions which may apply to the Stockholder. The parties
agree that, if the provisions of the Corporation's Restated
Certificate of Incorporation, including any amendments that
may be adopted subsequent to the date of this Agreement, are
more restrictive than the provisions of this Agreement, the
more restrictive provisions of the Restated Certificate of
Incorporation shall prevail.
***
WITNESS:
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Stockholder
ATTEST:
PETER KIEWIT SONS', INC.
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Assistant Secretary President
