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EXHIBIT 4.4
FORM OF SERIES 2000D CONVERTIBLE DEBENTURE
KIEWIT MATERIALS COMPANY
A DELAWARE CORPORATION
Registered Debenture No. 2000D- $
7.81% Convertible Debenture Due: November 30, 2010
KIEWIT MATERIALS COMPANY, 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 November 30, 2010, the principal
sum of ($ ) Dollars.
This debenture is one of the 2000D series of registered convertible
debentures of the Corporation, due November 30, 2010 unless previously redeemed
or converted, limited to the aggregate principal amount of Seven Million Three
Hundred Forty Four Thousand Dollars ($7,344,000) and No/100 ($ )
Dollars, all issued or to be issued pursuant to an indenture, dated as of
September 14, 2000 (the "Indenture"), executed and delivered by the Corporation
and UMB Bank, N.A. as Trustee, (hereinafter referred to as "Trustee"). This
debenture is subject to the terms of the Indenture, and all indentures
supplemental thereto, and reference is hereby made to the Indenture and any such
supplemental indenture for a description of the rights, limitations, obligations
and immunities of the Corporation, the holders of the debentures and the
Trustee. Capitalized terms used and not defined herein have the meanings
ascribed to those terms in the Indenture.
(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 holder hereof or his registered assigns, interest on
the principal sum of this debenture at the rate of seven and eighty one
hundredths percent (7.81%) 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 from the most recent date to which
interest has been paid, or if no interest has been paid, from the date of
original issuance. In the event of conversion as provided in paragraph (7)(a)
hereof, interest shall cease accruing on the principal amount of this debenture
on June 30, 2005. In the event of conversion as provided in paragraph (7)(b)
hereof, interest shall cease accruing on the principal amount of this debenture
on the Conversion Date. Interest on this debenture shall be paid annually on
each December 1st, commencing December 1, 2001 to the registered holder as
recorded on the Security Register maintained by the Corporation as of the
preceding November 15 (the "Regular Record Date").
(3) PLACE OF PAYMENT: The principal and interest on this debenture
shall be payable at the office of the Corporation in 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.
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(5) REDEMPTION: This debenture is subject to redemption at any time
prior to the date of maturity at its principal amount plus all accrued and
unpaid interest to the date of redemption, provided, however, that the entire
series is redeemed. This debenture may not be redeemed during the thirty (30)
day conversion period provided for in paragraph (7)(a) hereof. Redemption shall
be preceded by notice thereof, mailed to the registered holder by registered
mail no later than thirty (30) days preceding the date of redemption. The
registered holder may convert this debenture into Common Stock during that
thirty (30) day period preceding the date set for redemption as provided for in
paragraph 7(b) hereof.
(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 the office of the Trustee, upon surrender and
cancellation of this debenture, the payment of applicable charges as recorded on
the Security Register and the delivery of a form of assignment with medallion
signature guarantee or other guarantee acceptable to the Trustee. The
Corporation and the Trustee may treat the registered holder of this debenture as
recorded on the Security Register 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: during the period
commencing on November 1, 2005 and ending on November 30, 2005, the registered
holder may convert the entire principal amount of this debenture, plus a cash
payment equal to the product of multiplied by the Average Closing
Market Price on the Conversion Date, into ( ) shares of Common Stock,
subject to adjustment upon the occurrence of certain events as provided in the
Indenture.
(b) If any of the following events occur prior to November 1, 2005,
this debenture is convertible into Common Stock: (i) for thirty (30) days
following the occurrence of the registered holder's death; (ii) for thirty (30)
days following a Change of Control; (iii) for thirty (30) days prior to
redemption of the registered holder's debentures, as provided for in paragraph
(5) hereof, and (iv) for thirty (30) days prior to an initial registered public
offering of the Common Stock or upon a determination by the Corporation's Board
of Directors that the Common Stock is publicly traded . During any such period,
the registered holder or the registered holder's representative or estate, as
the case may be, may convert the entire principal amount of the debenture plus a
cash payment equal to the product of multiplied by the Average Closing
Market Price on the Conversion Date, into ( ) shares of Common Stock, subject
to adjustment upon the occurrence of certain events as provided in the
Indenture.
(c) During the period commencing on December 1, 2005 and ending on
November 30, 2010, the date of maturity, the debenture is not convertible, in
whole or in part.
(d) The conversion privilege shall be deemed exercised by submission of
this debenture with a written request for conversion plus the required cash
payment during the applicable conversion period at the principal office of the
Corporation. The Corporation shall thereafter, within a sixty (60) day period,
issue certificates registered in the name of the
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registered holder representing the shares of Common Stock into which this
debenture has been converted.
(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 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) LIMITATION 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.
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.
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IN WITNESS WHEREOF, Kiewit Materials Company 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 day of , 2000.
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ATTEST: KIEWIT MATERIALS COMPANY
By
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Assistant Secretary President
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION: This is one of the debentures
described in the Indenture, dated as of September 14, 2000, by and between
Kiewit Materials Company and UMB Bank, N.A. as Trustee.
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Dated By
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Authorized Officer
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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 KIEWIT MATERIALS COMPANY, dated , 2000.
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