<PAGE>
As filed with the Securities and Exchange Commission on April 21, 1994
Registration No. 33-52337
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MORRISON KNUDSEN CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 82-0393735
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Morrison Knudsen Plaza, Boise, Idaho 83729 (208) 386-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
DAVID A. CHANNER
Associate General Counsel
Morrison Knudsen Corporation
Morrison Knudsen Plaza, Boise, Idaho 83729 (208) 386-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THE PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, Dated April 21, 1994
MORRISON KNUDSEN CORPORATION
COMMON STOCK
-----------------------------
This Prospectus relates to 848,252 shares (the "Shares") of Common Stock,
par value $1.66-2/3 per share ("Common Stock") of Morrison Knudsen Corporation,
a Delaware corporation (the "Company") which may be offered and sold by the
selling stockholders named herein (the "Selling Stockholders") pursuant to this
Prospectus from time to time. The Shares were acquired from the Company under
certain agreements more particularly described herein under the heading "Recent
Developments." The Company will receive no part of the proceeds from the sale
of the Shares.
The distribution of the Shares by the Selling Stockholders shall be
effected directly by means of ordinary brokers' transactions or, in cash or
exchange transactions, to one or more institutional purchasers or through sales
agents in one or more transactions by means of ordinary brokers' transactions,
block transactions (which may involve crosses) on the New York Stock Exchange or
the Pacific Stock Exchange, or fixed price offerings, exchange distributions or
special offerings in accordance with the applicable rules at prices acceptable
to the Selling Stockholders. See "Plan of Distribution." The Company will pay
the expenses of registration of the Shares. The Selling Stockholders will pay
all fees and expenses of their own legal counsel and accountants and all
commissions or transfer taxes, if any. The Company has agreed to indemnify
certain of the Selling Stockholders (more particularly described herein as the
"Touchstone Principals" under the heading "Selling Stockholders") against
certain liabilities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). See "Selling Stockholders."
The Shares are traded on the New York Stock Exchange and the Pacific Stock
Exchange under the symbol MRN.
-----------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------
The date of this Prospectus is ___________, 1994
<PAGE>
AVAILABLE INFORMATION
Morrison Knudsen Corporation (the "Company") is subject to the information
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Reports, proxy statements and other information filed by the Company may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at Room 3190, 230 South Dearborn
Street, Chicago, Illinois 60604 and Room 1228, 75 Park Place, New York, New
York 10007. Copies of such materials can be obtained by mail from the Public
Reference Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. In addition, such material may also be inspected
and copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005, and the Pacific Stock Exchange, Incorporated, 301 Pine
Street, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information, reference is hereby
made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company pursuant
to the Exchange Act are incorporated herein by reference.
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1993;
2. The Company's Current Reports on Form 8-K dated January 10, 1994,
January 31, 1994, February 8, 1994 and February 10, 1994.
3. The description of the Common Stock contained in "Business to be
Transacted - 2. Plan of Reorganization - Holding Company Common" in the
Company's Proxy Statement/Prospectus dated March 5, 1985, which is filed as
Exhibit 28.4 to the Company's Registration Statement on Form 8-B filed pursuant
to Section 12(b) of the Exchange Act, dated May 6, 1985;
4. The description of the Company's Common Stock Purchase Rights under
the Company's Stockholder Rights Plan contained under the caption "Description
of Capital Stock-Stockholder Rights Plan" (in the Company's Registration
Statement on Form S-3 (No. 33-33934) filed with the Commission on March 26,
1990); and
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5. All other documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the termination of the offering.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the request of any such person, a copy of any
or all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests for such copies should be directed
to Morrison Knudsen Corporation, Morrison Knudsen Plaza, Boise, Idaho 83729,
Attention: Ms. Suzanne M. Bowman, telephone (208) 386-5000.
THE COMPANY
Morrison Knudsen Corporation is a worldwide organization involved in a
broad range of construction, engineering, mining and manufacturing services.
The Company provides design, engineering, construction, procurement and project
management services, and environmental evaluation and hazardous waste
remediation services, for its private and public sector clients. The Company
operates coal and lignite mines under long-term contracts and holds equity
interests in some of the mines that it operates. It also rebuilds transit rail
cars and locomotives and builds new transit rail cars.
Morrison Knudsen Corporation is a Delaware corporation headquartered in
Boise, Idaho, and has been in business for approximately 80 years. Its
principal executive offices are located at Morrison Knudsen Plaza, Boise, Idaho
83729, and its telephone number is (208)386-5000. As used in this Prospectus,
the terms "Morrison Knudsen" and the "Company" mean Morrison Knudsen Corporation
and its consolidated subsidiaries, unless the context indicates otherwise.
SELLING STOCKHOLDERS
The 848,252 Shares being registered are to be offered for the accounts of
Richard J. Clark, Dennis E. Clark and Richard K. Clark (the "Clark Principals")
and Theodore E. Nelson, Richard L. Jacobs, James L. Fri, Jr. and Ellida S. Fri
(the "Touchstone Principals") (the Clark Principals and the Touchstone
Principals collectively referred to herein as the "Selling Stockholders"). The
Shares are comprised as follows:
(A) 42,519 Shares delivered to the Clark Principals pursuant to the
terms of a Share Exchange Agreement dated as of December 30, 1993, among
the Clark Principals, the Company, Morrison Knudsen Corporation, an Ohio
corporation ("MK-Ohio"), and Clark Industries, Inc., an Illinois
corporation ("Clark"), (the "Clark Exchange Agreement"), pursuant to which
the Company acquired Clark from the Clark Principals;
(B) 4,725 Shares that were issued in the names of the Clark
Principals and delivered to Key Trust Company of the West ("Escrow Agent"),
pursuant to the terms of an irrevocable Deposit Escrow Agreement, dated as
of December 30, 1993, among the Clark Principals, the Company, MK-Ohio and
the Escrow Agent;
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(C) 31,008 Shares that were issued in the names of the Clark
Principals pursuant to the terms of Non-Competition Agreements dated as of
December 30, 1993, among each of the Clark Principals, Clark and the
Company;
(D) 648,000 Shares delivered to the Touchstone Principals pursuant to
the terms of a Share Exchange Agreement dated as of January 31, 1994, among
the Touchstone Principals, the Company, and Touchstone, Inc., a Tennessee
corporation ("Touchstone"), (the "Touchstone Exchange Agreement"),
pursuant to which the Company acquired Touchstone from the Touchstone
Principals;
(E) 72,000 Shares that were issued in the names of the Touchstone
Principals and delivered to Key Trust Company of the West ("Escrow Agent"),
pursuant to the terms of an irrevocable Deposit Escrow Agreement, dated as
of January 31, 1994, among the Touchstone Principals, the Company and the
Escrow Agent; and
(F) 50,000 Shares that were issued in the names of Theodore E. Nelson
and Richard L. Jacobs pursuant to the terms of Non-Competition Agreements
dated as of January 31, 1994, among each of Theodore E. Nelson and Richard
L. Jacobs, Touchstone and the Company.
Prior to closing of the Clark acquisition on December 30, 1993, the Clark
Principals did not beneficially hold or own any shares of the Company's Common
Stock. As of such closing, the Clark Principals beneficially owned less than 1%
of the Company's outstanding shares of Common Stock.
Prior to closing of the Touchstone acquisition on January 31, 1994, the
Touchstone Principals did not beneficially hold or own any shares of the
Company's Common Stock. As of such closing, the Touchstone Principals
beneficially owned 2.3% of the Company's outstanding shares of Common Stock.
As of the date of this Prospectus, the Selling Stockholders beneficially
owned 2.6% of the Company's outstanding shares of Common Stock.
All of the shares beneficially owned by the Selling Stockholders are being
registered for offer and sale pursuant to this Prospectus. See "Recent
Developments."
PLAN OF DISTRIBUTION
The Shares may be offered and sold by the Selling Stockholders pursuant to
this Prospectus from time to time directly by means of ordinary brokers'
transactions or, in cash or exchange transactions, to one or more institutional
purchasers or through sales agents by means of (i) ordinary brokers'
transactions, (ii) block transactions (which may involve crosses) in accordance
with the rules of the New York Stock Exchange, the Pacific Stock Exchange, or
any other exchange on which the Common Stock is traded (the "Exchanges"),
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in which the Selling Stockholders's agents may attempt to sell the Shares as
agent but may position and resell all or a portion of the Shares as principal,
(iii) "fixed price offerings" off the floor of the Exchanges or "exchange
distributions" and "special offerings" of shares in accordance with the rules of
the Exchanges, or (iv) a combination of any such methods of sale, in each case
at market prices prevailing at the time of sale, at prices related to prevailing
market prices or at negotiated prices. In connection therewith, distributors'
or sellers' commissions may be paid or allowed which will not exceed those
customary in the types of transactions involved. If any sales agent of the
Selling Stockholders purchases the Shares as principal, it may resell such
shares by any of the methods of sale described above.
If a "fixed price offering" of Shares off the floor of the Exchanges is
made, a sales agent of the Selling Stockholders would purchase a block of shares
from the Selling Stockholders and may form a group of dealers to participate in
the resale of such shares. Any such transaction would be described in a
prospectus or prospectus supplement filed pursuant to Rule 424 under the
Securities Act.
DESCRIPTION OF CAPITAL STOCK
CAPITAL STOCK
The following statements with respect to the Company's capital stock are
subject to the detailed provisions of the Company's Restated Certificate of
Incorporation (the "Certificate") and By-laws, as amended (the "By-laws"), and
to the Rights Plan (as defined below). These statements do not purport to be
complete and are qualified in their entirety by reference to the terms of the
Certificate, the By-laws and the Rights Plan, which are incorporated by
reference into this Prospectus.
The Company's authorized capital stock consists of 100,000,000 shares of
common stock, par value $1.66-2/3 per share (the "Common Stock"), and 10,000,000
shares of preferred stock, par value $.10 per share (the "Preferred Stock"). As
of September 30, 1993, 32,112,828 shares of Common Stock were issued and
outstanding (excluding 508,899 shares held in treasury and including 661,138
unallocated shares of Common Stock in the Company's Employee Stock Ownership
Plan Trust, which are accounted for as treasury stock). No shares of Preferred
Stock are issued or outstanding.
COMMON STOCK
The Common Stock does not have any conversion or preemptive rights or
redemption or sinking fund provisions. The holders of Common Stock are entitled
to one vote for each share held on all matters voted on by the stockholders
generally, including the election of directors. The Common Stock does not have
cumulative voting rights. As a result, the holders of more than 50% of Common
Stock can elect 100% of the directors to be elected if they choose to do so
(subject to the voting rights, if any, of any shares of Preferred Stock which
may at the time be outstanding) and, in such event, the holders of the remaining
shares of Common Stock would not be able to elect any directors.
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Holders of Common Stock are entitled to receive such dividends as the Board
of Directors of the Company from time to time may declare out of funds legally
available therefor. Subject to the rights of holders of any shares of Preferred
Stock which might at the time be outstanding, in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company, holders of
Common Stock are entitled to share equally in the balance of assets, if any,
remaining after payment of all debts and liabilities.
PREFERRED STOCK
The Preferred Stock is issuable in series by action of the Company's Board
of Directors, which may fix the designations, relative powers (including voting
powers), preferences and rights of shares to be included in any such series, and
qualifications, limitations or restrictions thereof as permitted under the
Delaware General Corporation Law. There currently are no shares of Preferred
Stock outstanding. Although there currently are no plans to issue shares of
Preferred Stock, it is contemplated that from time to time the Company may
consider financing, acquisitions or other proposals involving the issuance or
reservation of shares of Preferred Stock.
STOCKHOLDER RIGHTS PLAN
On June 12, 1986, the Board of Directors of the Company declared a dividend
of one common stock purchase right (a "Right") for each outstanding share of
Common Stock to the holders of record on June 25, 1986 and authorized and
directed the issuance of one Right with respect to each share of Common Stock
that shall become outstanding prior to the occurrence of certain terminating
events. Each Right entitles the registered holder to purchase from the Company
one share of Common Stock at a price currently equal to $50, subject to
adjustment (the "Purchase Price"). Upon the occurrence of certain events
generally associated with an unsolicited takeover attempt of the Company or
certain self-dealing transactions, the Rights (except for Rights held by an
Acquiring Person (as defined)) will become exercisable and will cease to
automatically trade with the Common Stock. Thereafter, upon the occurrence of
certain further triggering events, each Right (except for Rights held by an
Acquiring Person) will become exercisable, at the then-current exercise price of
the Right, to purchase that number of shares of Common Stock having a market
value of two times the exercise price of the Right.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
in a manner which causes the Rights to become exercisable. The Company
believes, however, that the Rights should neither affect any prospective offeror
willing to negotiate with the Board of Directors of the Company nor interfere
with any merger or other business combination approved by the Board of Directors
of the Company because the Board of Directors may, at its option, redeem the
Rights. The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights.
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CERTAIN PROVISIONS OF THE CERTIFICATE AND BY-LAWS
The Certificate provides in Article Sixth that the number of directors
shall be not less than three nor more than twenty and further provides for a
classified Board of Directors with three-year staggered terms of office;
however, the Certificate also provides that if at any time there is issued and
outstanding a series of Preferred Stock, the holders of which have the right,
voting separately as a class to elect one or more directors, the terms of office
of the director or directors elected by such holders of Preferred Stock shall be
for terms of one year. The affirmative vote of the holders of not less than 80%
of the outstanding shares entitled to vote generally in the election of
directors is required to amend, modify or repeal Article Sixth of the
Certificate. Consequently, it could be more difficult to replace directors of
the Company which could make more difficult and, therefore, less likely a
takeover or change in management of the Company.
The Certificate contains provisions relating to corporate governance.
Briefly, those provisions include: (a) prohibiting stockholder action by
written consent without a meeting, which provision may not be amended, modified
or repealed except by the affirmative vote of the holders of not less than 80%
of the outstanding shares of the Company entitled to vote generally in the
election of directors (Article Ninth) and (b) requiring satisfaction of certain
minimum price criteria and certain procedures or alternatively approval by an
affirmative 80% stockholder vote, in the case of certain business combinations
with or initiated by an interested stockholder (defined to include, among
others, a person who beneficially owns 10% or more of the outstanding stock of
the Company), which provisions cannot be amended, modified or repealed without
an 80% affirmative vote of the stockholders (Article Eighth).
The Company has 100,000,000 authorized shares of Common Stock. Although it
has no intention to do so, the Company's Board of Directors could cause the
Company to issue, in one or more transactions, additional shares of Common Stock
(within the limits imposed by applicable laws and the rules of the New York
Stock Exchange to the extent that such rules may be observed by the Company) in
amounts which could make more difficult and, therefore, less likely a takeover
or change in management of the Company.
The Company has 10,000,000 authorized shares of Preferred Stock which are
issuable in series by action of the Company's Board of Directors, which may fix
the voting powers, preferences, rights and other terms as permitted under the
Delaware General Corporation Law. Although it currently has no intention to do
so, the Company's Board of Directors could cause the Company to issue, in one or
more transactions, Preferred Stock (within the limits imposed by applicable laws
and the rules of the New York Stock Exchange to the extent that such rules may
be observed by the Company) with voting rights (including rights as a class to
elect additional directors) and other terms, provisions and rights which could
make more difficult and, therefore, less likely a takeover or change in
management of the Company.
Any issuance of Common Stock or Preferred Stock could have the effect of
diluting the earnings per share, book value per share and voting power of shares
held by the Company's stockholders. For example, additional shares of Common
Stock or shares of one
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or more series of Preferred Stock, or some combination thereof, could be issued
(within the limits imposed by applicable laws and rules of the New York Stock
Exchange to the extent that such rules may be observed by the Company) to one or
more holders who, as a result of the issuance of such shares, would have
sufficient voting power to assure that any proposed amendments to the
Certificate, particularly amendments requiring an 80% stockholder vote for
approval (including among others, any amendment to the provision for a
classified Board of Directors, to the provision requiring satisfaction of
certain minimum price criteria and certain procedures in order to effect certain
business combinations, or to the provision denying stockholders the right to act
by written consent without a meeting), would not receive the necessary
stockholder vote required for such amendment. In addition, such shares could be
privately placed with purchasers who might oppose a hostile takeover bid or
(particularly if the Board authorized holders of a series of Preferred Stock to
vote as a class, either separately or with the holders of Common Stock) to
affect the outcome of any proposal for a merger of the Company or sale or
exchange of assets by the Company or any other extraordinary corporate
transaction. Consequently, although the Board of Directors has no present
intention to issue additional shares of Common Stock or any shares of Preferred
Stock for such purposes, the authorized but unissued shares of Common Stock and
Preferred Stock would be available for such purposes. These provisions make it
more difficult to effect a change in control of the Company or to obtain
approval of any proposal to amend the Certificate or to effect certain mergers,
asset sales or exchanges or other extraordinary corporate transactions which
might be opposed by the incumbent Board of Directors.
The By-laws of the Company contain provisions requiring that any
stockholder desiring to bring an item of business before an annual meeting of
stockholders or to nominate a person for election as a director must provide
written notice thereof to the Company not less than 50 days nor more than 75
days prior to the meeting unless notice of the meeting is given less than 65
days in advance, in which case the stockholder's notice must be received not
later than 15 days following the date on which notice of the meeting was given
(Sections 4 and 12(b)). In addition, the By-laws provide that special meetings
of the stockholders may be called only by the Chairman of the Board or by a
majority of the Board of Directors (Section 9). These provisions make it more
difficult for a stockholder to bring stockholder action not supported by
management or to effect a change in management.
The provisions of the Certificate and By-laws described above may in
certain circumstances make more difficult or discourage a takeover of the
Company and, thus, the removal of incumbent management. Management has no
knowledge of any specific effort to accumulate shares of Common Stock or to
obtain control of the Company by means of a merger, tender offer, solicitation
or otherwise. These provisions are designed to assist the Company in carrying
out its long-term strategy for enhancement of stockholder value and to encourage
persons interested in business combinations to negotiate with the Company. The
Company has no present intention to adopt other anti-takeover measures, although
it is possible that circumstances could arise which would cause the Company to
do so.
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RECENT DEVELOPMENTS
The Shares were issued by the Company to the Selling Stockholders in
connection with the acquisition of Clark Industries, Inc. ("Clark") and
Touchstone, Inc. ("Touchstone") pursuant to the Clark Exchange Agreement and the
Touchstone Exchange Agreement, respectively, and other related side agreements.
As a result of such acquisitions, Clark became a wholly owned subsidiary of a
wholly owned subsidiary of the Company and Touchstone became a wholly owned
subsidiary of the Company. Clark, headquartered in Gilman, Illinois, is a
leading manufacturer of cylinder heads, pistons and liner assemblies for
railroad locomotives. Touchstone, headquartered in Jackson, Tennessee, is a
leading supplier of new and remanufactured locomotive cooling systems. See
"Selling Stockholders."
LEGAL MATTERS
The validity of the Common Stock offered by this Prospectus will be passed
upon for the Company by David A. Channer, Associate General Counsel to the
Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1993, have been audited by
Deloitte & Touche, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates or any offer to sell or the solicitation of an offer to buy
such securities in any circumstances in which such offer or solicitation is
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The registrant estimates that expenses in connection with the offering
described in the Registration Statement will be as follows:
<TABLE>
<CAPTION>
Item Amount
---- ------
<S> <C>
Securities and Exchange Commission Registration Fee $ 7,258
Printing and Engraving Expenses 200
Accountants' Fees and Expenses 2,000
Legal Fees and Expenses 5,000
Miscellaneous 542
---
Total $ 15,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation may 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 the corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he 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 conduct was unlawful."
With respect to derivative actions, Section 145(b) of the DGCL provides in
relevant part that "[a] corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor . . . [by reason of his service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper."
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The Company's Restated Certificate of Incorporation, Article Eleventh,
provides that each person who is or was or who had agreed to become a director
or officer of the Company or who had agreed at the request of the Company's
Board of Directors or an officer of the Company to serve as an employee or agent
of the Company or as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Company to the full extent permitted by the DGCL or any other
applicable laws. Such article also provides that the Company may enter into one
or more agreements with any person which provides for indemnification greater or
different than that provided in such Article Eleventh, and that no amendment or
repeal of Article Eleventh shall apply to or have any effect on the right to
indemnification permitted or authorized thereunder for or with respect to claims
asserted before or after such amendment or repeal arising from acts or omissions
occurring in whole or in part before the effective date of such amendment or
repeal.
Section 45 of the Company's by-laws provides that the Company shall
indemnify to the full extent authorized by law any person made or threatened to
be made a party to an action or a proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator or
intestate was or is a director, officer, or employee of the Company or any
predecessor of the Company or serves or served any other enterprise as a
director, officer or employee at the request of the Company or any predecessor
of the Company.
The Company has entered into indemnification agreements with its directors
and certain of its officers.
The Company has purchased and maintains insurance on behalf of any person
who is or was a director or officer against any loss arising from any claim
asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
ITEM 16. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Registrant (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-3 (No.
33-55402) filed on December 4, 1992, and incorporated herein by
reference).
4.2 Restated By-laws of the Registrant, as amended (filed as Exhibit 3.2
to Form 10-K Annual Report for the year ended December 31, 1992, and
incorporated herein by reference).
4.3 Specimen Common Stock Certificate (filed as Exhibit 4.5 to the
Company's Registration Statement on Form S-3 (No. 33-40502) filed on
May 10, 1991 and incorporated herein by reference).
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4.4 Rights Agreement dated as of June 12, 1986 (the "Rights Agreement")
between the Company and Chemical Trust Company of California as
Rights Agent (filed as Exhibit 1 to the Company's Registration
Statement on Form 8-A filed on June 23, 1986, and incorporated
herein by reference), and Amendment to the Rights Agreement dated
July 7, 1988 (filed as Exhibit 3 to the Company's Current Report on
Form 8-K dated July 7, 1988, and incorporated herein by reference).
4.5** Share Exchange Agreement dated as of December 30, 1993, among
Richard J. Clark, Dennis E. Clark and Richard K. Clark, the
Company, Morrison Knudsen Corporation, an Ohio corporation, and
Clark Industries, Inc.
4.6** Share Exchange Agreement dated as of January 31, 1994, among
Theodore E. Nelson, Richard L. Jacobs, James L. Fri, Jr. and Ellida
S. Fri, the Company and Touchstone, Inc.
5.1** Opinion of David A. Channer, Associate General Counsel to the
Company.
23.1** Consent of David A. Channer (included in Exhibit 5.1).
23.2* Consent of Deloitte & Touche.
24.1** Powers of Attorney of certain Directors and Officers of the Company
(Ms. Peden, Messrs. Agee, Arrillaga, Fox, Hemmeter,
Howland, Lynch, McCabe, Roche, Rogers, Sarsten and Ueberroth).
* Filed herewith.
** Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling person of the
registrant, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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
II - 3
<PAGE>
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 Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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; and
(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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
II - 4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement, or amendment thereto, to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boise, State of Idaho, on
April 21, 1994.
MORRISON KNUDSEN CORPORATION
/s/ Stephen G. Hanks
By: ____________________________________________
Stephen G. Hanks
Executive Vice President -
Finance and Administration
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, or amendment thereto, has been signed by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
Chairman, President and
WILLIAM J. AGEE * Chief Executive Officer April 21, 1994
_________________________ (Principal Executive Officer
(William J. Agee) and Director)
/s/ Stephen G. Hanks
_________________________ Executive Vice President - April 21, 1994
(Stephen G. Hanks) Finance and Administration
and Secretary
(Principal Financial Officer)
MARK E. HOWLAND *
_________________________ Vice President and Controller April 21, 1994
(Mark E. Howland) (Principal Accounting Officer)
JOHN ARRILLAGA * Director April 21, 1994
________________________
(John Arrillaga)
________________________ Director ______________
(Zbigniew Brzezinski)
II - 5
<PAGE>
LINDSAY E. FOX * Director April 21, 1994
_________________________
(Lindsay E. Fox)
C. B. HEMMETER * Director April 21, 1994
_________________________
(C. B. Hemmeter)
PETER S. LYNCH * Director April 21, 1994
_________________________
(Peter S. Lynch)
ROBERT A. McCABE * Director April 21, 1994
_________________________
(Robert A. McCabe)
IRENE C. PEDEN * Director April 21, 1994
_________________________
(Irene C. Peden)
GERARD R. ROCHE * Director April 21, 1994
_________________________
(Gerard R. Roche)
JOHN W. ROGERS, JR. * Director April 21, 1994
_________________________
(John W. Rogers, Jr.)
GUNNAR E. SARSTEN * Director April 21, 1994
_________________________
(Gunnar E. Sarsten)
PETER V. UEBERROTH * Director April 21, 1994
_________________________
(Peter V. Ueberroth)
* Stephen G. Hanks, by signing his name hereto, does hereby sign this
Registration Statement on behalf of each of the above-named officers and
directors of Morrison Knudsen Corporation on this 21st day of April, 1994,
pursuant to powers of attorney executed on behalf of each such officer and
director.
/s/ Stephen G. Hanks
By: ____________________________________________
Stephen G. Hanks
Attorney-in-Fact
II - 6
<PAGE>
EXHIBIT INDEX
NUMBER AND DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation of the Registrant (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-3 (No.
33-55402) filed on December 4, 1992, and incorporated herein by
reference).
4.2 Restated By-laws of the Registrant, as amended (filed as Exhibit 3.2
to Form 10-K Annual Report for the year ended December 31, 1992, and
incorporated herein by reference).
4.3 Specimen Common Stock Certificate (filed as Exhibit 4.5 to the
Company's Registration Statement on Form S-3 (No. 33-40502) filed on
May 10, 1991 and incorporated herein by reference).
4.4 Rights Agreement dated as of June 12, 1986 (the "Rights Agreement")
between the Company and Chemical Trust Company of California as Rights
Agent (filed as Exhibit 1 to the Company's Registration Statement on
Form 8-A filed on June 23, 1986, and incorporated herein by
reference), and Amendment to the Rights Agreement dated July 7, 1988
(filed as Exhibit 3 to the Company's Current Report on Form 8-K dated
July 7, 1988, and incorporated herein by reference).
4.5** Share Exchange Agreement dated as of December 30, 1993, among Richard
J. Clark, Dennis E. Clark and Richard K. Clark, the Company, Morrison
Knudsen Corporation, an Ohio corporation, and Clark Industries, Inc.
4.6** Share Exchange Agreement dated as of January 31, 1994, among Theodore
E. Nelson, Richard L. Jacobs, James L. Fri, Jr. and Ellida S. Fri, the
Company and Touchstone, Inc.
5.1** Opinion of David A. Channer, Associate General Counsel to the Company.
23.1** Consent of David A. Channer (included in Exhibit 5.1).
23.2* Consent of Deloitte & Touche.
24.1** Powers of Attorney of certain Directors and Officers of the Company
(Ms. Peden, Messrs. Agee, Arrillaga, Fox, Hemmeter, Howland, Lynch,
McCabe, Roche, Rogers, Sarsten and Ueberroth).
_______________________
* Filed herewith.
** Previously filed.
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Pre-Effective Amendment
No. 1 to Form S-3 Registration Statement No. 33-52337 of Morrison Knudsen
Corporation of our report dated February 8, 1994 (which report expresses an
unqualified opinion and includes an explanatory paragraph referring to the
change in the Company's method of accounting for post-retirement health care
costs in 1992 to conform with Statement of Financial Accounting Standards
No. 106) appearing in the Annual Report on Form 10-K of Morrison Knudsen
Corporation for the year ended December 31, 1993, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE
Boise, Idaho
April 21, 1994
