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 Identification No.)
or organization)
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 Securities Amount to be Offering Price Aggregate Offering Registra-
to be Registered Registered Per Share Price tion Fee
7.81% Series 2000
Convertible Debentures
due October 31,2010 $5,300,000 102.5% $5,432,000 $1,434.05
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 25, 1999.
(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 25, 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), 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.
In addition, 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 7.81% Series 2000 Convertible Debentures ("2000
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 2000 Debentures is $5,300,000.
The 2000 Debentures will be issued on December 1, 2000, and
will bear interest payable annually on November 1 of each year
and on the maturity date at the rate of 7.81% per annum. The 2000
Debentures mature on October 31, 2010. If the 2000 Debentures are
converted into the Company's Common Stock (see "Conversion
Rights" below), interest ceases to accrue on June 30, 2005. The
2000 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 2000 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 2000 Debentures purchased.
The Company currently has outstanding Convertible Debentures
of the 1997A Series in the aggregate principal amount of
$908,050, Convertible Debentures of the 1998A Series in the
aggregate principal amount of $1,804,917.84, and Convertible
Debentures of the 1999A Series in the aggregate principal amount
of $2,762,077.54. These debentures were also issued under the
Indenture, which is "qualified" under the Trust Indenture Act
of 1939.
The terms of the 2000 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 2000 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 2000 Debenture holders.
Conversion Rights
Debenture holders may convert 2000 Debentures into the
Company's Common Stock from October 1, 2005 through October 31,
2005. 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 2000 Debenture is convertible
into whole shares of stock at a conversion price of $12.62 (less
the amount of any dividend declared during 2000 after the date of
this Registration Statement and prior to December 1, 2000) per
share, the Formula Price of Common Stock as of December 1, 2000,
the date of issuance of the 2000 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 2000 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 2000 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 November 1, 2000.
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)
November 1, 2000
/s/ Michael J. Piechoski Vice President
Michael J. Piechoski (Principal Financial Officer)
November 1, 2000
/s/ Gregory D. Brokke Controller
Gregory D. Brokke (Principal Accounting Officer)
November 1, 2000
/s/ Mogens C. Bay Director November 1, 2000
Mogens C. Bay
/s/ Roy L. Cline Director November 1, 2000
Roy L. Cline
/s/ Richard W. Colf Director November 1, 2000
Richard W. Colf
/s/ James Q. Crowe Director November 1, 2000
James Q. Crowe
/s/ Richard Geary Director November 1, 2000
Richard Geary
/s/ Bruce E. Grewcock Director November 1, 2000
Bruce E. Grewcock
/s/ William L. Grewcock Director November 1, 2000
William L. Grewcock
/s/ Peter Kiewit, Jr. Director November 1, 2000
Peter Kiewit, Jr.
/s/ Allan K. Kirkwood Director November 1, 2000
Allan K. Kirkwood
/s/ Walter Scott, Jr. Director November 1, 2000
Walter Scott, Jr.
/s/ George B. Toll, Jr. Director November 1, 2000
George B. Toll, Jr.
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
------------------------------------------------------------------
4.4 Form of 2000 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.
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