SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of incorporation or organization) (I.R.S. Employer Identification No.)
Kiewit Plaza, Omaha Nebraska 68131
(Address of principal executive offices) (Zip Code)
PETER KIEWIT SONS', INC.
EMPLOYEE OWNERSHIP PLAN
(Full title of the Plan)
Michael F. Norton, Esq.
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
(402) 342-2052
(Name, address and telephone number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Amount to be Offering Price Aggregate Offering Registration
Securities to Registered Per Share Price Fee
be Registered
Common Stock,
par value $.01
per share 1,450,000 $50.40 $73,080,000 $21,558.60
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information
required by Item 1 of this Form S-8 and the statement
of availability of information of Peter Kiewit Sons',
Inc. (the "Company" or the "Registrant"), and other
information required by Item 2 of this Form S-8 will
be sent or given to employees as specified by Rule 428
under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with Rule 428 and
the requirements of Part I of Form S-8, such documents
are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. The
Company shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon
request, the Company shall furnish to the Commission
or its staff a copy of any or all of the documents
included in such file.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission
by the Company are incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for
the fiscal year ended December 27, 1997.
(b) All other reports filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since December 27, 1997,
including the Company's Current Report on Form 8-K
dated March 27, 1998 (filed with the Commission on
April 13, 1998, and as amended on Form 8-K/A filed with
the Commission on May 1, 1998).
(c) The description of the Company's $.01 par
value common stock ("Common Stock") contained in the
Company's Registration Statement on Form S-4 (File No.
333-34627) as filed with the Commission under the
Securities Act on August 29, 1997, amended by
Amendment No. 1 to the Registration Statement on Form
S-4 filed on October 10, 1997, Amendment No. 2 to the
Registration Statement on Form S-4 filed on November
6, 1997 and Amendment No. 3 to the Registration
Statement on Form S-4 filed on November 10, 1997.
All documents filed hereafter by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered
have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. Description of Securities.
The description of securities registered pursuant
to this Registration Statement is incorporated by
reference. See Item 3(c) above.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered pursuant
to this Registration Statement has been passed upon for
the Company by Michael F. Norton. Mr. Norton, Corporate
Counsel, is an employee of the Company. Mr. Norton owns
shares of the Company's Common Stock, and will be
offered the opportunity to purchase securities in this
offering.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation
Law (the "DGCL") empowers a Delaware corporation to
indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed action, suit or proceeding,
whether civil, criminal, administrative or
investigative (other than an action by or in the right
of such corporation) by reason of the fact that such
person is or was a director, officer, employee or
agent of another corporation or enterprise. A
corporation may, in advance of the final disposition
of any civil, criminal, administrative or
investigative action, suit or proceeding, pay the
expenses (including attorney's fees) incurred by an
officer, director, employee or agent in defending such
action, provided that the director or officer
undertakes to repay such amount if it shall ultimately
be determined that he or she is not entitled to be
indemnified by the corporation. A corporation may
indemnify such person against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such
person in connection with such action, suit or
proceeding if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was
unlawful.
A Delaware corporation may indemnify officers and
directors in an action by or in the right of the
corporation to procure a judgement in its favor under
the same conditions, except that no indemnification is
permitted without judicial approval if the officer or
director is adjudicated to be liable to the
corporation. Where an officer or director is
successful on the merits or otherwise in the defense
of any action referred to above, the corporation must
indemnify him or her against the expenses (including
attorneys' fees) which he or she actually and
reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive
of any other rights to which an officer or director
may be entitled under any corporation's by-law,
agreement, vote or otherwise.
In accordance with Section 145 of the DGCL,
Article Sixth of the Company's Restated Certificate of
Incorporation ("Certificate") and Section 51 of the
Company's Amended and Restated By-Laws ("By-Laws")
provide that the Company shall indemnify each person
who is or was a director, officer or employee of the
Company (including the heirs, executors,
administrators or estate of such person) or is or was
serving at the request of the Company as a director,
officer or employee of another corporation,
partnership, joint venture, trust or other enterprise,
to the fullest extent permitted under subsections
145(a), (b) and (c) of the DGCL or any successor
statute. The indemnification provided by the
Certificate and the By-Laws shall not be deemed
exclusive of any other rights to which any of those
seeking indemnification or advancement of expenses may
be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise,
both as to action in such person's official capacity
and as to action in another capacity while holding
such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 145 of the DGCL also empowers a Delaware
corporation to purchase and maintain insurance on
behalf of its officers and directors against any
liability asserted against them incurred while acting
in such capacities or arising out of their status as
such. The Company does maintain such insurance.
Article Seventh of the Certificate provides that a
director of the Company shall not be personally liable
to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the
director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of
the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. If the
DGCL is amended further eliminating or limiting the
personal liability of directors, then the liability of
a director of the Company shall be eliminated or
limited to the fullest extent permitted by the DGCL as
so amended.
Item 7. Exemption from Registration Claimed.
No restricted securities are to be reoffered or
resold pursuant to this Registration Statement.
Item 8. Exhibits.
Exhibits filed as a part of this Registration
Statement are listed below. Exhibits incorporated by
reference are indicated in parentheses.
Exhibit
Number Description
4.1 Restated Certificate of Incorporation (Exhibit
3.1 to the Company's Current Report on Form 8-K
dated March 27, 1998, filed on April 13, 1998).
4.2 Amended and Restated By-laws (Exhibit 3.2 to
the Company's Current Report on Form 8-K dated
March 27, 1998, filed on April 13, 1998).
4.3 Form of Stock Repurchase Agreement for Employee
Stockholders.
5.1 Opinion of Michael F. Norton, Esq., with
respect to legality of securities being
registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5.1).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment
to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any
facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information
required to be included in a post-effective
amendment by those paragraphs is contained in
periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new
Registration Statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under
the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to
deliver or cause to be delivered with the prospectus,
to each person to whom the prospectus is sent or given,
the latest annual report to security holders that is
incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Exchange Act; and,
where interim financial information required to be
presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is
specifically incorporated by reference in the
prospectus to provide such interim financial
information.
(d) Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is
against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such
liabilities (other than the payment by the Registrant
of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Securities Act and
will be governed by the final adjudication of issue.
SIGNATURES
Pursuant to the requirements of the Securities Act
of 1933, the Registrant certifies it has reasonable
grounds to believe that it meets all the requirements
for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City
of Omaha, State of Nebraska on May 4, 1998.
PETER KIEWIT SONS", INC.
By: /s/ Kenneth E. Stinson
Name: Kenneth E. Stinson
Title: President
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed
below by the following persons in the capacities and on
the date indicated.
Name Title Date
/s/ Kenneth E. Stinson Chairman of the Board and President
Kenneth E. Stinson (Principal Executive Officer) May 4, 1998
/s/ Stephen A. Sharpe Vice President
Stephen A. Sharpe (Principal Financial Officer) May 4, 1998
/s/ Kenneth M. Jantz Vice President
Kenneth M. Jantz (Principal Accounting Officer) May 4, 1998
/s/ Richard W. Colf Director May 4, 1998
Richard W. Colf
/s/ James Q. Crowe Director May 4, 1998
James Q. Crowe
/s/ Richard Geary Director May 4, 1998
Richard Geary
/s/ Bruce Grewcock Director May 4, 1998
Bruce Grewcock
/s/ William L. Grewcock Director May 4, 1998
William L. Grewcock
/s/ Tait P. Johnson Director May 4, 1998
Tait P. Johnson
/s/ Peter Kiewit, Jr. Director May 4, 1998
Peter Kiewit, Jr.
/s/ Allan K. Kirkwood Director May 4, 1998
Allan K. Kirkwood
/s/ Walter Scott, Jr. Director May 4, 1998
Walter Scott, Jr.
/s/ Thomas C. Stortz Director May 4, 1998
Thomas C. Stortz
/s/ George B. Toll, Jr. Director May 4, 1998
George B. Toll, Jr.
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.3 Form of Stock Repurchase Agreement for Employee Stockholders.
5.1 Opinion of Michael F. Norton, Esq., with respect to legality
of securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5.1).
EXHIBIT 5.1
May 4, 1998
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
Re: Form S-8 Registration Statement
Gentlemen:
I am corporate counsel to Peter Kiewit Sons', Inc., a
Delaware corporation (the "Company"), and in such capacity have
examined the Registration Statement on Form S-8 to which this
opinion is an exhibit, to be filed with the Securities and
Exchange Commission on or about May 4, 1998 (the "Registration
Statement"). The Registration Statement will register 1,450,000
shares of the Company's $.01 par value common stock (the "Common
Stock"). I have also examined copies of the Restated Certificate
of Incorporation and the Amended and Restated By-laws of the
Company. In addition, I have made such other examinations and have
ascertained or verified to my satisfaction such additional facts
as I deem pertinent under the circumstances.
Based on the foregoing, it is my opinion that:
1. The Company is a corporation duly organized and existing
under the laws of the State of Delaware.
2. The shares of Common Stock, when sold pursuant to the
offering contemplated by the Registration Statement, will be
legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ Michael F. Norton
Michael F. Norton
Corporate Counsel
MFN:gcr
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
Registration Statement of Peter Kiewit Sons', Inc. on Form S-8 of
our report dated March 20, 1998 of our audits of the consolidated
financial statements of Peter Kiewit Sons', Inc. (formerly PKS
Holdings, Inc.) for the period ended December 27, 1997, which
report is included in the Annual Report on Form 10-K of Peter
Kiewit Sons', Inc. (formerly PKS Holdings, Inc.).
We also consent to the incorporation by reference in the
Registration Statement of our report dated March 30, 1998 on our
audits of the financial statements of Kiewit Construction and
Mining Group, a business group of Level 3 Communications, Inc.
(formerly Peter Kiewit Sons', Inc.) as of December 27, 1997 and
December 28, 1996 and for each of the three years ended December
27, 1997, which report is included in Peter Kiewit Sons', Inc.'s
(formerly PKS Holdings, Inc.) Current Report on Form 8-K dated
March 27, 1998 (filed on April 13, 1998, and as amended on Form
8-K/A filed on May 1, 1998).
COOPERS & LYBRAND L.L.P.
/s/Coopers & Lybrand L.L.P.
Omaha, Nebraska
May 4, 1998
EXHIBIT 4.3
STOCK REPURCHASE AGREEMENT
FOR EMPLOYEE STOCKHOLDERS
THIS AGREEMENT is made on _______________, 199_,
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:
- ------------------------ -------------------------
Stockholder
ATTEST:
PETER KIEWIT SONS', INC.
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Assistant Secretary President
