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)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<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
- --------------------------------------------------------------------------------------
Common Stock, par
value $.01 per share 1,700,000 $15.65 $26,605,000 $7,848.48
</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, including the
Company's Current Report on Form 8-K dated March 4, 1999
(filed with the Commission on March 19, 1999).
(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 attorneys' 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
corporationto procure a judgment 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
theCompany 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 (Exhibit 4.3 to the Company's Form
S-8 Registration Statement filed on May 4, 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).
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
3, 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
(Principal Executive Officer) May 3, 1999
/s/ Kenneth M. Jantz Vice President
Kenneth M. Jantz (Principal Financial Officer) May 3, 1999
/s/ Rodney K. Rosenthal Controller
Rodney K. Rosenthal (Principal Accounting Officer) May 3, 1999
/s/ Mogens C. Bay Director May 3, 1999
Mogens C. Bay
/s/ Richard W. Colf Director May 3, 1999
Richard W. Colf
/s/ James Q. Crowe Director May 3, 1999
James Q. Crowe
/s/ Richard Geary Director May 3, 1999
Richard Geary
/s/ Bruce Grewcock Director May 3, 1999
Bruce Grewcock
/s/ William L. Grewcock Director May 3, 1999
William L. Grewcock
/s/ Tait P. Johnson Director May 3, 1999
Tait P. Johnson
/s/ Peter Kiewit, Jr. Director May 3, 1999
Peter Kiewit, Jr.
/s/ Allan K. Kirkwood Director May 3, 1999
Allan K. Kirkwood
/s/ Walter Scott, Jr. Director May 3, 1999
Walter Scott, Jr.
/s/ George B. Toll, Jr. Director May 3, 1999
George B. Toll, Jr.
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
- ------------------------------------------------------------------
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).
EXHIBIT 5.1
May 3, 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 May 3, 1999 (the "Registration
Statement"). The Registration Statement will register 1,700,000
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 18, 1999 on our audits of the
consolidated financial statements of Peter Kiewit Sons', Inc. as
of December 26, 1998 and December 27, 1997 and for each of the
three years in the period ended December 26, 1998, which report
is included in the 1998 Annual Report on Form 10-K of Peter
Kiewit Sons, Inc.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Omaha, Nebraska
May 3, 1999
