SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
KIEWIT MATERIALS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 47-0819021
(State of incorporation or (I.R.S. Employer Identification No.)
organization)
Kiewit Plaza, Omaha, Nebraska 68131
(Address of principal executive offices) (Zip Code)
KIEWIT MATERIALS COMPANY
NON-EMPLOYEE DIRECTOR OWNERSHIP PLAN
(Full title of the Plan)
Mark E. Belmont, Esq.
Vice President, General Counsel and Secretary
Kiewit Materials Company
Kiewit Plaza
Omaha, Nebraska 68131
(402) 536-3661
(Name address and telephone number, including area code, of agent for
service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Aggregate Registration
Registered Registered Price Per Offering Price Fee
---------------- ------------ --------- -------------- ------------
Common Stock, 17,157 shares $7.14 $122,501 (2) $33.00
par value $0.01 (1)
per share
(1) Includes such presently indeterminate number of shares as may be issued
to prevent dilution resulting from stock splits, stock dividends or
similar transactions effected without the receipt of consideration.
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Exchange
Act of 1933.
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 Kiewit
Materials Company (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 Registration Statement on Form 10 (File No. 000-
29619) filed with the Commission on September 15, 2000.
(b) All other reports filed pursuant to Sections 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 Common Stock contained in
Company's Registration Statement on Form 10 (File No. 000-29619) filed with
the Commission on September 15, 2000.
In addition, 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 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 Mark E.
Belmont. Mr. Belmont, General Counsel, is an employee of the Company. Mr.
Belmont owns shares of Common Stock.
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 corporation to 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 X of the
Company's Restated Certificate of Incorporation ("Certificate") and Article
VIII 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 Eleventh 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 of Kiewit Materials
Company (Exhibit 3.1 to Amendment No. 5 to Kiewit
Materials Company's Registration Statement on Form 10,
filed with the Securities and Exchange Commission on
September 15, 2000).
4.2 Amended and Restated By-laws of Kiewit Materials Company
(Exhibit 3.2 to Amendment No. 5 to Kiewit Materials
Company's Registration Statement on Form 10, filed with
the Securities and Exchange Commission on September 15,
2000).
5.1 Opinion of Mark E. Belmont, Esq., with respect to legality
of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Perkins & Company, P.C.
23.4 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 November 30, 2000.
KIEWIT MATERIALS COMPANY
By: /s/ Christopher J. Murphy
---------------------------
Christopher J. Murphy
President and Chief Executive
Officer
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/ Christopher J. Murphy
-------------------------- President, Chief Executive November 30, 2000
Christopher J. Murphy Officer and Director
/s/ Donald E. Bowman
-------------------------- Vice President and Chief November 30, 2000
Donald E. Bowman Financial Officer
/s/ Todd A. Freyer
-------------------------- Controller November 30, 2000
Todd A. Freyer
/s/ Richard W. Colf
-------------------------- Director November 30, 2000
Richard W. Colf
/s/ Bruce E. Grewcock
-------------------------- Director November 30, 2000
Bruce E. Grewcock
/s/ William L. Grewcock
-------------------------- Director November 30, 2000
William L. Grewcock
/s/ Richard Geary
-------------------------- Director November 30, 2000
Richard Geary
/s/ James Goodwin
-------------------------- Director November 30, 2000
James Goodwin
/s/ Walter Scott, Jr.
-------------------------- Director November 30, 2000
Walter Scott, Jr.
/s/ Kenneth E. Stinson
-------------------------- Chairman of the Board of November 30, 2000
Kenneth E. Stinson Directors
KIEWIT MATERIALS COMPANY
INDEX TO EXHIBITS
Exhibit Number Description
-------------- -----------
4.1 Restated Certificate of Incorporation of Kiewit Materials
Company (Exhibit 3.1 to Amendment No. 5 to Kiewit
Materials Company's Registration Statement on Form 10,
filed with the Securities and Exchange Commission on
September 15, 2000).
4.2 Amended and Restated By-laws of Kiewit Materials Company
(Exhibit 3.2 to Amendment No. 5 to Kiewit Materials
Company's Registration Statement on Form 10, filed with
the Securities and Exchange Commission on September 15,
2000).
5.1 Opinion of Mark E. Belmont, Esq., with respect to legality
of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Perkins & Company, P.C.
23.4 Consent of Counsel (included in Exhibit 5.1).
