SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
Kiewit Plaza, Omaha, Nebraska 68131
(Address of principal executive (Zip Code)
offices)
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
<TABLE>
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share Price Fee
8.25% Series 1999
Convertible Debentures
due October 31, 2009 $6,220,000 102.5% $6,375,500 $1,772.39
</TABLE>
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 26, 1998.
(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 26, 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), filed with the
Commission under the Securities Act on August 29, 1997, amended
by Amendment No. 1 to the Registration Statement on Form S-4,
filed on October 10, 1997, Amendment No. 2 to the Registration
Statement on Form S-4, filed on November 6, 1997 and Amendment
No. 3 to the Registration Statement on Form S-4, filed on
November 10, 1997.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Common Stock
The description of the Company's Common Stock is
incorporated by reference. See Item 3(c) above.
Debentures
The 8.25% Series 1999 Convertible Debentures ("1999
Debentures") will be issued in fully registered form under an
Indenture dated July 1, 1986, as amended pursuant to a First
Supplemental Indenture dated as of March 31, 1998 (collectively,
the "Indenture"). The trustee under the Indenture is U.S. Bank
National Association (the "Trustee"). The Indenture does not
limit the aggregate principal amount of debentures which may be
issued and provides that debentures may be issued from time to
time in one or more series. The registered principal amount of
the 1999 Debentures is $6,205,000.
The 1999 Debentures will be issued on November 1, 1999, and
will bear interest payable annually on November 1 of each year
and on the maturity date at the rate of 8.25% per annum. The 1999
Debentures mature on October 31, 2009. If the 1999 Debentures are
converted into the Company's Common Stock (see "Conversion
Rights" below), interest ceases to accrue on June 30, 2004. The
1999 Debentures will be unsecured obligations of the Company, and
the holders thereof will rank equally with other unsecured
creditors of the Company in bankruptcy, including the holders of
any other series of debentures. The 1999 Debentures will be
issued only in registered form, without coupons, in denominations
of $1,000 or any integral multiple thereof. The purchaser will be
required to pay a premium of $25 for each $1,000 in principal
amount of the 1999 Debentures purchased.
The Company currently has outstanding Convertible Debentures
of the 1997 Series in the aggregate principal amount of
$3,390,000 and Convertible Debentures of the 1998 Series in the
aggregate principal amount of $4,430,000. These debentures were
also issued under the Indenture, which is "qualified" under the
Trust Indenture Act of 1939.
The terms of the 1999 Debentures include those stated under
the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act as in effect on the date of the
Indenture. Holders of the 1999 Debentures are referred to the
Trust Indenture Act of 1939 and the Indenture, the form of which
is incorporated by reference into this Registration Statement,
for a complete statement of those terms. The following is a
summary of those terms and the terms of the repurchase agreements
to be executed by the 1999 Debenture holders.
Conversion Rights
Debenture holders may convert 1999 Debentures into the
Company's Common Stock from October 1, 2004 through October 31,
2004. No other conversion period is provided for, and if the
holder does not convert to Common Stock during this period, the
conversion right is lost. The entire principal amount (no partial
conversions are permitted) of a 1999 Debenture is convertible
into whole shares of stock at a conversion price of $15.65 (less
the amount of any dividend declared during 1999 after the date of
this Registration Statement and prior to November 1, 1999) per
share, the Formula Price of Common Stock as of November 1, 1999,
the date of issuance of the 1999 Debentures. A cash payment by
the debenture holder, determined with reference to the Formula
Price of the Common Stock on the date of conversion, is required
where necessary to avoid the issuance of fractional shares. The
conversion right is conditioned upon the execution of a
repurchase agreement pertaining to the Common Stock acquired by
means of the conversion. The conversion rights will be adjusted
to reflect stock splits, stock dividends, stock reclassifications
or certain corporate reorganizations between the date of purchase
of the 1999 Debentures and the date of conversion.
Ownership and Transfer Restrictions
Debentures are offered by the Company to employees whom the
Board of Directors and management determine have contributed
significantly to the growth and performance of the Company. Sales
of the debentures are conditioned upon the execution of a
repurchase agreement under which the purchaser is generally
restricted from transferring the debentures except to the
Company. The Company must purchase any debentures offered to it
by debenture holders. The repurchase agreement also provides that
the debentures must be sold back to the Company upon the death or
retirement of the purchaser of the debenture or the termination
of his employment with the Company. In any of the above-mentioned
instances, the Company will purchase the debentures at a price
equal to the principal amount thereof, together with accrued
interest from the last interest payment date to the date of such
purchase at the stated rate. No payment is made by the Company
with respect to the original bond premium. In the event the
Company is offered some but not all, of a debenture holder's
debentures, the Company may purchase all of such holder's
debentures.
Redemption
Upon not less than ten (10) days' written notice, the
Company may, at its option, redeem all (but not less than all) of
the debentures of any given series at the principal amount
thereof, together with accrued interest from the last interest
payment date to the date fixed for redemption at the stated rate.
No payment is made by the Company with respect to the original
bond premium. The Company may not redeem debentures of any series
during the one-month conversion period applicable to that series.
Modification of Indenture
The Indenture permits modification or amendment thereof with
the consent of the holders of not less than two-thirds in
principal amount of each series of debentures, but no
modification of the terms of payment, conversion rights, or the
percentage required for modification will be effective against
any debenture holder without his consent.
Events of Default and Withholding of Notice Thereof to Debenture Holders
The Indenture provides for the following Events of Default
with respect to each series of the debentures: (i) failure to pay
interest upon any of the debentures of such series when due,
continuing for a period of sixty (60) days and (ii) failure to
pay principal of the debentures of such series when due,
continuing for a period of sixty (60) days.
The Trustee, within ninety (90) days after the occurrence of
a default with respect to a particular series of debentures, is
to give the holders of debentures of such series notice of all
defaults known to the Trustee, unless cured prior to the giving
of such notice, provided that, except in the case of default in
the payment of principal or interest on any of the debentures of
such series, the Trustee may withhold such notice if and so long
as it in good faith determines that the withholding of such
notice is in the interest of the holders of debentures of such
series.
Upon the happening and during the continuance of a default
with respect to a particular series of debentures, the Trustee
may declare the principal of all the debentures of such series
and the interest accrued thereon due and payable, but if the
default is cured, the holders of a majority of such debentures
may waive all defaults and rescind such declaration. Subject to
the provisions of the Indenture relating to the duties of the
Trustee in case any such default shall have occurred and be
continuing, the Trustee will be under no obligation to exercise
any of its rights or powers at the request, order or direction of
any of the debenture holders unless they shall have offered to
the Trustee reasonable security or indemnity. A majority of the
holders of outstanding debentures of such series will have the
right to direct the time, method, and place of conducting any
proceeding for exercising any remedy available to the Trustee
with respect to the debentures of such series.
The Trustee
The Company maintains a demand deposit account and conducts
routine banking business with the Trustee. The Indenture contains
limitations on the right of the Trustee, as a creditor of the
Company under other instruments, to obtain payment of claims in
specified cases, or to realize on certain property received in
respect of any such claim as security or otherwise.
Authentication and Delivery
The debentures may be authenticated and delivered upon the
written order of the Company without any further corporate
action.
Satisfaction and Discharge of Indenture
The Indenture may be discharged upon payment or redemption
of all of the debentures or upon deposit with the Trustee of
funds sufficient therefor.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered pursuant to this
Registration Statement has been passed upon for the Company by
Michael F. Norton. Mr. Norton, Corporate Counsel, is an employee
of the Company. Mr. Norton owns shares of the Company's Common
Stock and may 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 Quarterly Report on Form 10-Q/A for the
period ended June 30, 1999, filed on August 17, 1999).
4.2 Amended and Restated By-laws (Exhibit 3.2 to the
Company's Quarterly Report on Form 10-Q/A for the
period ended June 30, 1999, filed on August 17, 1999).
4.3 Indenture dated as of July 1, 1986, as amended
pursuant to a First Supplemental Indenture dated as of March
31, 1998 (Exhibit 4.3 to the Company's Registration
Statement on Form S-8, filed on October 5, 1998).
4.4 Form of 1999 Debenture.
4.5 Form of Repurchase Agreement for Convertible
Debentures (Exhibit 4.5 to the Company's Registration Statement
on Form S-8, filed on October 5, 1998).
5.1 Opinion of Michael F. Norton, Esq., with respect to
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (included in Exhibit 5.1).
99.1 Form T-1 Statement of Eligibility of Trustee.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such
information in the Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes to deliver
or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements
of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article
3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to
provide such interim financial information.
(d) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Omaha, State of Nebraska on October 4, 1999.
PETER KIEWIT SONS', INC.
By: /s/ Tobin A. Schropp
-------------------------
Name: Tobin A. Schropp
Title: Vice President
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the date indicated.
Name Title Date
- ---- ----- ----
/s/ Kenneth E. Stinson Chairman of the Board
Kenneth E. Stinson and President October 4, 1999
(Principal Executive Officer)
/s/ Kenneth M. Jantz Vice President
Kenneth M. Jantz (Principal Financial Officer) October 4, 1999
/s/ Rodney K. Rosenthal Controller
Rodney K. Rosenthal (Principal Accounting Officer) October 4, 1999
/s/ Mogens C. Bay Director October 4, 1999
Mogens C. Bay
/s/ Roy L. Cline Director October 4, 1999
Roy L. Cline
/s/ Richard W. Colf Director October 4, 1999
Richard W. Colf
/s/ James Q. Crowe Director October 4, 1999
James Q. Crowe
/s/ Richard Geary Director October 4, 1999
Richard Geary
/s/ Bruce E. Grewcock Director October 4, 1999
Bruce E. Grewcock
/s/ William L. Grewcock Director October 4, 1999
William L. Grewcock
/s/ Peter Kiewit, Jr. Director October 4, 1999
Peter Kiewit, Jr.
/s/ Allan K. Kirkwood Director October 4, 1999
Allan K. Kirkwood
/s/ Walter Scott, Jr. Director October 4, 1999
Walter Scott, Jr.
/s/ George B. Toll, Jr. Director October 4, 1999
George B. Toll, Jr.
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.4 Form of 1999 Debenture.
5.1 Opinion of Michael F. Norton, Esq., with respect to
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (included in Exhibit 5.1).
99.1 Form T-1 Statement of Eligibility of Trustee.
EXHIBIT 5.1
October 4, 1999
Peter Kiewit Sons', Inc.
Kiewit Plaza
Omaha, Nebraska 68131
Re: Form S-8 Registration Statement
Gentlemen:
I am corporate counsel to Peter Kiewit Sons', Inc., a
Delaware corporation (the "Company"), and in such capacity have
examined the Registration Statement on Form S-8 to which this
opinion is an exhibit, to be filed with the Securities and
Exchange Commission on or about October 4, 1999 (the
"Registration Statement"). The Registration Statement will
register $6,205,000 of the Company's 8.25% Series 1999
Convertible Debentures due October 31, 2009 ("1999 Debentures").
I have also examined copies of the Restated Certificate of
Incorporation and the Amended and Restated By-laws of the
Company. In addition, I have made such other examinations and
have ascertained or verified to my satisfaction such additional
facts as I deem pertinent under the circumstances.
Based on the foregoing, it is my opinion that:
1. The Company is a corporation duly organized and existing
under the laws of the State of Delaware.
2. The 1999 Debentures, when issued and sold pursuant to
such offering and in accordance with the terms of the Trust
Indenture, will be binding obligations of the Company.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
/s/ Michael F. Norton
Michael F. Norton
Corporate Counsel
MFN:gcr
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 18,
1999 relating to the consolidated financial statements of Peter
Kiewit Sons', Inc., which appears in Peter Kiewit Sons', Inc.'s
Annual Report on Form 10-K for the year ended December 26, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Omaha, Nebraska
October 4, 1999
EXHIBIT 4.4
PETER KIEWIT SONS', INC.
a Delaware corporation
Registered Debenture No. _________ $_________________
8.25% Convertible Debenture Due: October 31, 2009
PETER KIEWIT SONS', INC., a corporation organized and
existing under the laws of the State of Delaware, and having its
principal place of business in the City of Omaha, Nebraska
(hereinafter called the "Corporation"), for the value received,
hereby promises to pay to _________________________ or registered
assigns (hereinafter called the "Debentureholder") on October 31,
2009, the principal sum of _____________________________________
($_________________) Dollars.
This debenture is one of a 1999 issue of registered
convertible debentures of the Corporation, due October 31, 2009
unless previously redeemed or converted, limited to the aggregate
principal amount of __________________________________________
and No/100 ($_____________) Dollars, all issued or to be issued
pursuant to an indenture, dated as of July 1, 1986, executed and
delivered by Peter Kiewit Sons', Inc. (now Level 3
Communications, Inc.) ("PKS") and FirstTier Bank, N.A. Omaha, as
trustee, as amended pursuant to a First Supplemental Indenture
between the Corporation, PKS and U.S. Bank National Association
(hereinafter referred to as "Trustee"), as successor trustee
dated as of March 31, 1998. Reference is hereby made to the
indenture, and all indentures supplemental thereto, for a
description of the rights, limitations, obligations and
immunities of the Corporation, the holders of the debentures and
the Trustee.
(1) TYPE OF PAYMENT: Payment of interest and principal
shall be in any coin or currency of the United States of America
which at the time of payment shall be legal tender for the
payment of public or private debts.
(2) INTEREST: Except as hereinafter provided, the
Corporation promises to pay to the registered owner hereof or his
registered assigns, interest on the principal sum as of November
1, 2000 and each succeeding November 1, at the rate of Eight and
25/100 (8.25%) percent per annum until the Corporation's
obligation with respect to the payment of the principal amount
shall have been discharged. Interest shall accrue upon this
debenture until the date of redemption or maturity, whichever of
these dates shall first occur. In the event of conversion as
provided in paragraph (7) hereof, interest shall cease running on
the principal amount of the debenture on June 30, 2004. Interest
on this debenture shall be paid annually on the November 1st
immediately following the twelve months in which such interest
was earned.
(3) PLACE OF PAYMENT: The principal and interest on this
debenture shall be payable at the office of the Corporation at
Omaha, Nebraska.
(4) DEFAULT: This debenture shall be deemed to be in
default whenever the principal sum and/or interest becomes
payable and remains unpaid for a period of sixty (60) days.
(5) REDEMPTION: This debenture is subject to redemption at
any time prior to the date of maturity at its principal amount
plus all unpaid interest to the date of redemption provided,
however, that the entire series is redeemed. This debenture may
not be redeemed during the thirty-one (31) day conversion period
provided for in paragraph (7) hereof. Redemption shall be
preceded by notice thereof, given to the registered holder by
registered mail no later than ten (10) days preceding the date of
redemption.
(6) TRANSFER: The debenture may be transferred by the
registered holder at the principal office of the Corporation in
Omaha, Nebraska on registry books kept for such purpose at such
office, upon surrender and cancellation of this debenture, and
the payment of applicable charges. The Corporation and the
Trustee may treat the registered owner of this debenture as the
absolute owner for all purposes.
(7) CONVERSION: (a) This debenture is convertible into the
$0.01 par value common stock ("Common Stock") of the Corporation
on the following basis: the debenture is not convertible, in
whole or in part, for the period commencing on the date of
issuance and ending on September 30, 2004. During the period
commencing on October 1, 2004 and ending on October 31, 2004, the
Debentureholder may convert the principal amount of the debenture
plus a cash payment in the amount of _______ multiplied by the
formula value of the Common Stock on the date of conversion, into
________________________ (________________) shares of Common
Stock of the Corporation. During the period commencing on
November 1, 2004 and ending on October 31, 2009, the date of
maturity, the debenture is not convertible, in whole or in part.
The conversion privilege shall be deemed exercised by submission
of the debenture with a written request for conversion during the
applicable thirty-one (31) day period at the principal office of
the Corporation. The Corporation shall thereafter, within a
sixty (60) day period, issue the Common Stock of the Corporation.
As a condition precedent to the rights of conversion granted in
this paragraph, the Debentureholder agrees to execute the
Corporation's applicable Stock Repurchase Agreement. The
debenture shall only be convertible by the Debentureholder if the
Debentureholder is otherwise eligible to own shares of Common
Stock of the Corporation as provided in the Corporation's
Restated Certificate of Incorporation.
(b) In case the Corporation shall change the stock issuable
upon conversion into the same or different number of new shares
of the same or of any other class or classes, the
Debentureholder, upon conversion, shall be entitled to receive,
in lieu of the old stock which he would have been entitled to
receive but for such change, a number of shares of the new stock
equivalent to the number of shares of new stock that would have
been issued to him in exchange for such number of shares of old
stock which he would have been entitled to receive if the
conversion privilege had been exercisable and exercised
immediately prior to such change.
(c) In case at any time or from time to time the
Corporation shall declare and pay on or in respect of the class
of stock issuable upon conversion, any dividend of shares of
stock of any class or classes, the Debentureholder, upon
exercising the conversion privilege, after the date of record of
the holders of stock to whom such stock dividend is payable,
shall be entitled to receive the shares of stock theretofore
issuable upon conversion, together with the dividend stock which
would have been issuable if the conversion privilege had been
exercisable and exercised immediately prior to the record date.
(d) The Corporation covenants and agrees that in case it
shall consolidate or merge with, or shall sell its property as an
entirety, or substantially as an entirety to any other
corporation, proper provision will be made as part of the terms
of such consolidation, merger or sale, that the holder of any
convertible debenture will thereafter be entitled to convert it
into the same kind and amount of securities and any other assets
as may be issuable or distributable by the terms of such
consolidation, merger or sale with respect to the number of
shares of Common Stock into which this debenture is convertible
at the time of such consolidation, merger or sale; provided
however, that the surviving corporation with which the
Corporation consolidates, merges or sells its property shall
succeed to all of the rights provided for in this debenture,
including the right of redemption.
(8) SUBORDINATION: In the payment of their claims, all
creditors of the Corporation shall rank equally with the holders
of convertible debentures. All claims of the convertible
Debentureholders against earnings or assets are hereby made
superior to those of stockholders, and the Corporation agrees
that as long as any of its convertible debentures are
outstanding, it will not pay any dividends on its stock until all
liability for unpaid interest on its debentures has been paid.
In the event of dissolution or liquidation of the Corporation,
the holders of all debentures shall be entitled to be paid in
full, both principal and interest, before any assets of the
Corporation are distributed to any stockholder.
(9) OWNERSHIP: The Corporation may treat the registered
owner of the debenture as the absolute owner of this debenture.
(10) LIQUIDATION OF LIABILITY: No recourse shall be had for
the payment of the principal or interest of this debenture,
against any incorporator, stockholder, officer, or director,
past, present, or future, of the Corporation, all such liability
being expressly waived by the owner of this debenture.
(11) VALIDATION: This debenture shall not be valid or
become obligatory for any purpose until the certificate of
authentication thereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, Peter Kiewit Sons', Inc. has caused this
debenture to become signed and its corporate seal to be hereunto
affixed by its officers duly authorized thereunto, all as of the
1st day of November, 1999.
ATTEST: PETER KIEWIT SONS', INC.
By:-------------------- By:----------------------
Assistant Secretary President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION: This is one of the
debentures described in the Trust Indenture, dated as of July 1,
1986, by and between Peter Kiewit Sons', Inc. (now Level 3
Communications, Inc.) ("PKS") and FirstTier Bank, N.A. Omaha, as
trustee, as amended pursuant to a First Supplemental Indenture
between the Corporation, PKS and U.S. Bank National Association,
as successor trustee dated as of March 31, 1998.
Dated:------------- By:---------------------
Authorized Officer
This Debenture and the transfer thereof are subject to
restrictions which are stated in an Agreement between the
Debentureholder(s) whose name(s) appear(s) hereon and PETER
KIEWIT SONS', INC., dated November 1, 1999.
EXHIBIT 99.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0417860
(State of Incorporation) (I.R.S. Employer
Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
Peter Kiewit Sons', Inc.
(Exact name of registrant as specified in its charter)
Delaware 91-1842817
(State of Incorporation) (I.R.S. Employer
Identification No.)
Kiewit Plaza, Omaha, Nebraska 68131
(Address of Principal Executive Offices) (Zip Code)
8.25% Series 1999 Convertible Debentures Due October 31, 2009
(Title of the Indenture Securities)
GENERAL
1. General Information Furnish the following information as
to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or
any underwriter for the obligor is an affiliate of the Trustee,
describe each such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the
Trustee's knowledge the obligor is not in default under any
Indenture for which the Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of
this statement of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust
powers (included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b)
of the act.
7. Copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its supervising
or examining authority incorporated by reference to File Number
333-56865.
*Incorporated by reference to File Number 333-30939.
NOTE
The answers to this statement insofar as such answers relate
to what persons have been underwriters for any securities of the
obligors within three years prior to the date of filing this
statement, or what persons are owners of 10% or more of the
voting securities of the obligors or affiliates, are based upon
information furnished to the Trustee by the obligors, While the
Trustee has no reason to doubt the accuracy of any such
information, it cannot accept any responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939, the Trustee, U.S. Bank National Association, an Association
organized and existing under the laws of the United States, has
duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested,
all in the City of Denver and State of Colorado on the 24th day
of September, 1999.
U.S. BANK NATIONAL ASSOCIATION
/s/ Sherrie L. Pantle
Sherrie L. Pantle
Vice President
/s/ Linda E. Houston
Linda E. Houston
Trust Officer
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act
of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby
consents that reports of examination of the undersigned by
Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: September 24, 1999
U.S. BANK NATIONAL ASSOCIATION
/s/ Sherrie L. Pantle
Sherrie L. Pantle
Vice President
