Registration No. 33-50412
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT No. 1
to
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DATA TRANSMISSION NETWORK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 47-0669375
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9110 West Dodge Road, Suite 200
Omaha, Nebraska 68114
(Address, including zip code, of principal executive offices)
Data Transmission Network Corporation 401(k) Plan
(Full title of the plan)
Brian L. Larson, Vice President, Chief Financial Officer,Secretary and Treasurer
9110 West Dodge Road, Suite 200
Omaha, Nebraska 68114
(402) 390-2328
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
----------
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Proposed Proposed Amount of
securities to Amount to be maximum offering maximum aggregate registration
be registered registered(1) price per share(1) offering price fee
================================================================================
Common stock,
$.001 par 300,000 $ 4.1666(2) $ 1,250,000(2) $390.63(3)
value (SOP) shares
================================================================================
(1) The number of shares registered hereunder shall include any additional
shares made available under the plan because of adjustment in the shares on
account of stock splits or stock dividends hereafter effected by the Registrant.
(2) Estimated pursuant to Rule 457(c) of the Securities Act solely for purposes
of calculating the registration fee. The price was based upon the average of the
high and low prices of Data Transmission Network Corporation Common Stock as
reported on the National Association of Securities Dealers Automated Quotations
system at the time of the initial registration, adjusted to reflect the
increased number of shares and proportionate reduction in offering price per
share by reason of the three-for-one stock split previously effected by the
Registrant.
(3) Previously paid by the Registrant.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
This Post-Effective Amendment No. 1 to Form S-8 consists of 16 pages.
The Exhibit Index is on page 8.
<PAGE>
This Post-Effective Amendment No. 1 to Form S-8 (Registration No. 33-50412) is
filed in order to reflect the increased number of shares registered hereunder by
reason of an adjustment made in the shares available under the plan on account
of a three-for-one forward stock split paid on June 28, 1996 and certain other
matters.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
Data Transmission Network Corporation (the "Registrant") and the
employee benefit plan described herein (the "Plan") hereby incorporate by
reference in this registration statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for its fiscal
year ended December 31, 1996.
(b) The Plan's Annual Report on Form 11-K for its fiscal year
ended December 31, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 1997.
(d) The Registrant's Quarterly Report on Form 10-Q for the period
ended June 30, 1997.
(e) The Registrant's Current Report on Form 8-K filed on
August 29, 1997.
(f) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A/A
(File No. 0-15405) filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934, as
amended.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and be a part hereof from the date of the filing of such documents.
This registration statement, including all documents
incorporated herein by reference, contains forward-looking statements.
Additional written or oral forward-looking statements may be made by the
Registrant from time to time in filings with the Commission or otherwise. The
words "believe," "expect," "anticipate" and "project" and similar expressions
identify forward-looking statements, which speak only as of the date the
statement is made. Such forward-looking statements are within the meaning of
that term in Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. Such statements may
include, but not be limited to, projections of revenues, income or loss, capital
expenditures, acquisitions, plans for future operations, financing needs or
plans, the impact of inflation and plans relating to products or services of the
Registrant, as well as assumptions relating to the foregoing. Forward-looking
statements are inherently subject to risks and uncertainties, some of which
cannot be predicted or quantified. Future events and actual results could differ
materially from those set forth in, contemplated by or underlying the
forward-looking statements. Statements in this registration statement and in the
Registrant's periodic reports filed with the Commission which are incorporated
by reference herein, describe factors, among others, that could contribute to or
cause such differences.
ITEM 4. DESCRIPTION OF SECURITIES
-------------------------
The class of securities offered by the Registrant pursuant to this
registration statement is registered under Section 12 of the Securities Exchange
Act of 1934.
2
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
-----------------------------------------
The Certificate of Incorporation of the Registrant, as permitted by the
laws of the State of Delaware, provides for the limitation of liability of
directors with respect to monetary damages for breach of fiduciary duty.
However, such certificate does not limit the liability of a director for
breaching his duty of loyalty to the Registrant or its shareholders, for acts or
omissions not in good faith, for engaging in intentional misconduct, under
Section 174 of the General Corporation Law of the State of Delaware pertaining
to unlawful payment of dividends or unlawful stock purchase or redemption, or
for any transaction from which the director derived an improper benefit.
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification of directors, officers, employees and agents of
corporations under certain conditions and subject to certain limitations. The
bylaws of the Registrant provide that the officers and directors of the
Registrant shall be indemnified by the Registrant to the fullest extent
permitted by the laws of Delaware, as amended from time to time.
The Registrant presently maintains insurance to protect itself and its
directors and officers against certain liabilities, costs, and expenses arising
out of claims or suits against such directors and officers resulting from their
service in such capacity.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to officers, directors, or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
-----------------------------------
Not applicable.
[Remainder of this page intentionally left blank]
3
<PAGE>
ITEM 8. EXHIBITS
--------
The exhibits filed as a part of this registration statement are:
<TABLE>
<CAPTION>
Exhibit
No.
-------
<S> <C> <C>
(1) 4.1 Certificate of Incorporation of Data Transmission
Network Corporation.
(1) 4.2 Bylaws of Data Transmission Network Corporation.
* 4.3 Data Transmission Network Corporation 401(k) Plan, as
initially adopted.
* 4.3(a) Amendment to the Data Transmission Network Corporation
401(k) Plan effective January 1, 1989.
* 4.3(b) Amendment to the Data Transmission Network Corporation
401(k) Plan effective July 1, 1992.
4.3(c) Amendment to the Data Transmission Network Corporation
401(k) Plan adopted October 18, 1994.
4.3(d) Amendment to the Data Transmission Network Corporation
401(k) Plan effective January 1, 1996.
4.3(e) Amendment to the Data Transmission Network Corporation
401(k) Plan adopted June 12, 1997.
5.1 Internal Revenue Service determination letter that
the Plan, as restated July 1, 1992, is qualified under
Section 401 of the Internal Revenue Code.
* 5.2 Opinion of Abrahams, Kaslow & Cassman regarding
legality of Common Stock being registered.
* 23.1 Consent of Deloitte & Touche LLP.
* 23.2 Consent of Abrahams, Kaslow & Cassman (included in
Exhibit 5.2).
23.3 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on signature page).
- -------------------------
<FN>
*Previously filed.
(1) Exhibits 4.1 and 4.2 hereto were previously filed as exhibits
to the Registration Statement of Data Transmission Network
Corporation on Form S-1 as filed December 4, 1987, and are
incorporated herein by this reference.
</FN>
</TABLE>
The Registrant hereby undertakes to submit the Plan, as amended, to the Internal
Revenue Service in a timely manner and make all changes required by the Internal
Revenue Service in order to qualify the Plan, as amended.
4
<PAGE>
ITEM 9. UNDERTAKINGS
------------
(a) Rule 415 offering. 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 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 paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or 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 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That for purposes 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; and
(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) Filing incorporating subsequent Exchange Act documents by
reference. 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 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 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 Act and
will be governed by the final adjudication of such issue.
5
<PAGE>
SIGNATURES
The Registrant. 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-8 and has duly caused this
Post-Effective Amendment No. 1 to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Omaha,
State of Nebraska on October 13, 1997.
DATA TRANSMISSION NETWORK CORPORATION
By: /s/ Roger R. Brodersen
------------------------------
Roger R. Brodersen
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Roger R. Brodersen and Greg T. Sloma, and
each of them individually, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place, and stead, in any and all capacities (including, if applicable, his
capacity as a director and/or officer of Data Transmission Network Corporation),
to sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them individually,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement and Power of Attorney
have been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Roger R. Brodersen Chairman of the Board, October 13, 1977
- -----------------------------
ROGER R. BRODERSEN Chief Executive Officer
and a Director
/s/ Greg T. Sloma Chief Operating Officer, October 13, 1997
- -----------------------------
GREG T. SLOMA President and a Director
/s/ Roger W. Wallace Senior Vice President and October 13, 1997
- -----------------------------
ROGER W. WALLACE a Director
6
<PAGE>
/s/ Robert S. Herman Senior Vice President and October 13, 1997
- -----------------------------
ROBERT S. HERMAN a Director
/s/ Brian L. Larson Vice President, Chief October 13, 1997
- -----------------------------
BRIAN L. LARSON Financial Officer, Secretary
and Treasurer (Principal
Financial and Accounting
Officer)
/s/ Jay E. Ricks Director October 13, 1997
- -----------------------------
JAY E. RICKS
/s/ David K. Karnes Director October 13, 1997
- -----------------------------
DAVID K. KARNES
/s/ J. Michael Parks Director October 13, 1997
- -----------------------------
J. MICHAEL PARKS
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan has duly caused this Post-Effective Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned Plan Administrator,
thereunto duly authorized, in the City of Omaha, State of Nebraska, on
October 13, 1997.
DATA TRANSMISSION NETWORK CORPORATION
401(k) PLAN
By: DATA TRANSMISSION NETWORK CORPORATION,
Plan Administrator
By: /s/ Greg T. Sloma
--------------------------------------
Greg T. Sloma
President and Chief Operating Officer
7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Page Number
In Sequential
Exhibit Numbering
No. System
------- ------------
<S> <C> <C> <C>
(1) 4.1 Certificate of Incorporation of
Data Transmission Network Corporation.
(1) 4.2 Bylaws of Data Transmission Network Corporation.
* 4.3 Data Transmission Network Corporation 401(k) Plan,
as initially adopted.
* 4.3(a) Amendment to the Data Transmission Network Corporation
401(k) Plan effective January 1, 1989.
* 4.3(b) Amendment to the Data Transmission Network
Corporation 401(k) Plan effective July 1, 1992.
4.3(c) Amendment to the Data Transmission Network Corporation
401(k) Plan adopted October 18, 1994. 9
4.3(d) Amendment to the Data Transmission Network Corporation
401(k) Plan effective January 1, 1996. 12
4.3(e) Amendment to the Data Transmission Network Corporation
401(k) Plan adopted June 12, 1997 13
5.1 Internal Revenue Service determination letter that the
Plan, as restated July 1, 1992, is qualified under
Section 401 of the Internal Revenue Code. 14
* 5.2 Opinion of Abrahams, Kaslow & Cassman regarding
legality of Common Stock being registered.
* 23.1 Consent of Deloitte & Touche LLP.
* 23.2 Consent of Abrahams, Kaslow & Cassman
(included in Exhibit 5.2).
23.3 Consent of KPMG Peat Marwick LLP. 16
24.1 Power of Attorney (included on signature page).
- -------------------------
<FN>
*Previously filed.
(1) Exhibits 4.1 and 4.2 hereto were previously filed as exhibits to the
Registration Statement of Data Transmission Network Corporation on
Form S-1 as filed December 4, 1987, and are incorporated herein by
this reference.
</FN>
</TABLE>
8
<PAGE>
EXHIBIT 4.3(c)
AMENDMENT TO THE
DATA TRANSMISSION NETWORK CORPORATION 401(K) PLAN
-------------------------------------------------
1. Effective July 1, 1992, Section 7.4(a) of the Data Transmission Network
Corporation 401(k) Plan (the "Plan") is amended in its entirety so as to
read as follows:
(a) On or before the Anniversary Date coinciding with or subsequent to the
termination of a Participant's employment for any reason other than
death, Total and Permanent Disability or retirement, the Administrator
may direct the Trustee to segregate the amount of the Vested portion
of such Terminated Participant's Combined Account and invest the
aggregate amount thereof in a separate, federally insured savings
account, certificate of deposit, common or collective trust fund of a
bank or a deferred annuity.
Distribution of the funds due to a Terminated Participant shall be
made on the occurrence of an event which would result in the
distribution had the Terminated Participant remained in the employ of
the Employer (upon the Participant's death, Total and Permanent
Disability, Early or Normal Retirement.) However, at the election of
the Participant, the Administrator shall direct the Trustee to cause
the entire Vested portion of the Terminated Participant's Combined
Account to be payable to such Terminated Participant. Any distribution
under this paragraph shall be made in a manner which is consistent
with and satisfies the provisions of Section 7.5, including, but not
limited to, all notice and consent requirements of Code Section
411(a)(11) and the Regulations thereunder.
If the value of a Terminated Participant's Vested benefit derived from
Employer and Employee contributions is $3,500 or less, the
Administrator shall direct the Trustee to cause the entire Vested
benefit to be paid to such Participant in a single lump sum.
2. The Plan is hereby amended by adding the following as an Appendix to the
Plan:
(a) Effective Date. This Amendment applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election under
this Amendment, a distributee may elect, at the time and in the manner
prescribed by the Administrator, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
(b) Definitions.
------------
(i) Eligible Rollover Distribution: An eligible rollover
distribution is any distribution of all or any portion of the
balance to the credit of the distributee, except that an
eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Section 401(a)(9) of the
Internal Revenue Code of 1986, as amended ("Code"); and the
portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
(ii) Eligible Retirement Plan: An eligible retirement plan is an
individual retirement account described in Section 408(a) of
the Code, an individual retirement annuity described in Section
408(b) of the Code, an annuity plan described in Section 403(a)
of the Code, or a qualified trust described in Section 401(a)
of the Code, that
9
<PAGE>
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity.
(iii) Distributee: A distributee includes an Employee or former
Employee. In addition, the Employee's or former Employee's
surviving spouse and the Employee's or former Employee's spouse
or former spouse who is the alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, are distributees with regard to the interest of the
spouse or former spouse.
(iv) Direct Rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
3. The Plan is hereby amended by adding the following as an Appendix to the
Plan:
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for
Plan years beginning on or after January 1, 1994, the annual
compensation of each employee taken into account under the Plan shall
not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the Commissioner for
increases in the cost of living in accordance with Section
401(a)(17)(B) of the Internal Revenue Code. The cost-of-living
adjustment in effect for a calendar year applies to any period, not
exceeding 12 months, over which compensation is determined
(determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA '93
annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination
period, and the denominator of which is 12.
For Plan years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall
mean the OBRA '93 annual compensation limit set forth in this
provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current
Plan year, the compensation for that prior determination period is
subject to the OBRA '93 annual compensation limit in effect for that
prior determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year
beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
4. Effective January 1, 1994, Section 4.14(a) of the Plan is amended in its
entirety so as to read as follows:
4.14 DIRECTION OF INVESTMENT
(a) Each contribution to the Plan on behalf of a Participant, shall
be invested by the Trustee in accordance with the provisions of
the Plan; provided, however, that each Participant may direct
the Trustee regarding the investment of such contributions by
written notice to the Administrator in the manner and form
prescribed by the Administrator. A Participant shall have the
right to elect the percentage of such contributions which the
Participant wishes to have invested in the following investment
choices (or such other choices as from time to time may be made
available):
(i) Company Stock;
(ii) a short term government portfolio;
(iii) a short/intermediate fixed income portfolio;
10
<PAGE>
(iv) a fixed income portfolio; and
(v) an equity portfolio.
If a Participant fails to direct the investment of contributions made
under this Plan, then such contributions shall be invested by the
Trustee in the short term government portfolio, in accordance with the
provisions of the Plan. A Participant may prospectively change the
investment direction for future contributions made on or after the
next January 1, April 1, July 1, or October 1 by written notice to the
Administrator in the manner and form prescribed by the Administrator
prior to the effective date of such change. A Participant may change
the investment direction of existing investments in a Participant's
Account each January 1, April 1, July 1, or October 1 by written
notice to the Administrator in the manner and form prescribed by the
Administrator prior to the effective date of such change.
11
<PAGE>
EXHIBIT 4.3(d)
AMENDMENT TO THE
DATA TRANSMISSION NETWORK CORPORATION
401(k) PLAN
Effective January 1, 1996, Section 1.17 of the Data Transmission Network
Corporation 401(k) Plan is amended in its entirety so as to read as follows:
"1.17. "Employer" means Data Transmission Network Corporation and any
Participating Employer (as defined in Section 11.1) which shall adopt
this Plan; any successor which shall maintain this Plan; and any
predecessor which has maintained this Plan. The Employer is a
corporation with principal offices in the State of Nebraska. Solely for
purposes of determining eligibility for participation service with the
following predecessor employer constitutes service with the "Employer":
BONNEVILLE MARKETING INFORMATION CORPORATION."
12
<PAGE>
EXHIBIT 4.3(e)
AMENDMENT TO THE
DATA TRANSMISSION NETWORK CORPORATION 401(k) PLAN
-------------------------------------------------
APPENDIX C
Rev. Rul. 94-76 Model Amendment
This amendment is effective on the first day of the first Plan Year beginning on
or after December 12, 1994, or, if later, March 12, 1995.
Notwithstanding any provision of this Plan to the contrary, to the extent that
any optional form of benefit under this Plan permits a distribution prior to the
Employee's retirement, death, disability, or severance from employment, and
prior to plan termination, the optional form of benefit is not available with
respect to benefits attributable to assets (including the post-transfer earnings
thereon) and liabilities that are transferred, within the meaning of Code
ss.414(I), to this Plan from a money purchase pension plan qualified under Code
ss.401(a) (other than any portion of those assets and liabilities attributable
to voluntary Employee contributions).
APPENDIX D
USERRA Model Amendment
This amendment is effective as of December 12, 1994.
Notwithstanding any provisions of this Plan to the contrary, contributions,
benefits, and service credit with respect to qualified military service will be
provided in accordance with Code ss.414(u). Loan repayment will be suspended
under this Plan as permitted under Code ss.414(u)(4).
13
<PAGE>
EXHIBIT 5.1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P O BOX A-3617 DPN2O-6
CHICAGO, IL 60690
Employer Identification Number:
Date: October 20, 1992 47-0669375
File Folder Number:
Data Transmission Network 360090782
Corporation Person to Contact:
C/O Randall C. Hanson TECHNICAL SCREENER
8712 West Dodge Road, Suite 200 Contact Telephone Number:
Omaha, NE 68114 (312) 435-1040
Plan Name:
DATA TRANSMISSION NETWORK
CORPORATION 401K PLAN
Plan Number: 001
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on its effect in operation. (See section 1.401-1(b) (3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
July 16, 1992.
This letter is based upon the certification and demonstrations you
submitted pursuant to Revenue Procedure 91-66. Therefore, the certification and
demonstrations are considered an integral part of this letter. Accordingly, YOU
MUST KEEP A COPY OF THESE DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT BE
ABLE TO RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
Sections 4.03 and 4.04 of Rev. Proc. 91-66 place limitations upon the
plan years for which this letter may be relied upon as to whether the plan meets
the requirements of Code section 401(a)(4).
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
14
<PAGE>
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
/s/ R. S. Wintrode, Jr.
-----------------------
R. S. Wintrode, Jr.
District Director
Enclosures:
Publication 794
PWBA 515
15
<PAGE>
EXHIBIT 23.3
ACCOUNTANTS' CONSENT
The Board of Directors
Data Transmission Network Corporation:
We consent to the incorporation by reference in the registration statement (No.
33-50412) on Form S-8 of Data Transmission Network Corporation of our report
dated October 6, 1995, with respect to the balance sheets of Broadcast Partners
as of August 31, 1995 and 1994, and the related statements of operations,
partners' equity, and cash flows for each of the years in the three-year period
ended August 31, 1995, which report is incorporated by reference in the Form
8-K/A of Data Transmission Network Corporation dated June 20, 1996.
KPMG Peat Marwick LLP
Des Moines, Iowa
October 9, 1997
16
