Registration No. 33-50406
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 Stock Option Plan of 1989
(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 1,050,000 $ 4.1666(2) $ 4,375,000(2) $1,367.19(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.
This Post-Effective Amendment No. 1 to Form S-8 consists of 17 pages.
The Exhibit Index is on page 7.
<PAGE>
This Post-Effective Amendment No. 1 to Form S-8 (Registration No. 33-50406) 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 (the "Stock Split")
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") hereby
incorporates 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 Registrant's Quarterly Report on Form 10-Q for the period
ended March 31, 1997.
(c) The Registrant's Quarterly Report on Form 10-Q for the period
ended June 30, 1997.
(d) The Registrant's Current Report on Form 8-K filed on
August 29, 1997.
(e) 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 Amended and Restated Data Transmission Network
Corporation Stock Option Plan of 1989, as restated to
incorporate changes through the Fifth Amendment and
give effect to the Stock Split.
* 5.1 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 5.1).
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>
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;
4
<PAGE>
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.
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
5
<PAGE>
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
/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>
6
<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 Amended and Restated Data Transmission Network 8
Corporation Stock Option Plan of 1989, as
restated to incorporate changes through the
Fifth Amendment and give effect to the Stock Split.
* 5.1 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 5.1).
23.3 Consent of KPMG Peat Marwick LLP. 17
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>
7
<PAGE>
Exhibit 4.3
[Restated to incorporate changes from first
second, third, fourth and fifth amendments and 3:1 stock split]
DATA TRANSMISSION NETWORK CORPORATION
STOCK OPTION PLAN OF 1989
-------------------------
ARTICLE I. GENERAL PROVISIONS
-----------------------------
Section 1. Purpose. The Data Transmission Network Corporation
Stock Option Plan of 1989 ("Plan") is designed to promote the interests
of the Company and its stockholders by encouraging full-time employees
of the Company and any Subsidiary to invest in Shares, thereby giving
them as stockholders an increased personal interest in the success and
progress of the Company and strengthening their desire to continue
their employment.
Section 2. Definitions. Except where the context otherwise
indicates, the following definitions apply:
"Board" means Board of Directors of the Company.
"Committee" means the Compensation Committee of the Board, such
Committee consisting of three or more members of the Board as may be
appointed by the Board to administer this Plan or such other body
(whether or not consisting of members of the Board) to whom the
Committee may delegate its powers (or a part thereof) to administer
this Plan.
"Company" means Data Transmission Network Corporation, a Delaware
corporation.
"Effective Date" means February 15, 1989.
"Eligible Participant" means any officer or other full-time
employee (including a director who is a full-time employee) of the
Company or a Subsidiary.
"Fair Market Value" means, with respect to any given day, the
closing "bid" price of the Company's Shares as reported by the NASDAQ
System for such day, or if no quotation shall have been made for that
day, for the next preceding day for which there was a quotation, if
within seven days thereof, or otherwise as determined in good faith by
the Committee.
"Participant" means an Eligible Participant to whom a Stock Option
has been granted.
8
<PAGE>
"Shares" means shares of $.001 par value common stock of the
Company, and any shares of stock or other securities received as
a result of a Share adjustment as set forth in Section 4 of this
Article I.
"Stock Option" or "Option" means a stock option granted pursuant
to this Plan.
"Subsidiary" means any corporation (or partnership, joint
venture, or other enterprise) (i) of which the Company owns or
controls, directly or indirectly, 50% or more of the outstanding
shares of stock normally entitled to vote for the election of
directors (or comparable equity participant and voting power) or
(ii) which the Company otherwise controls (by contract or any
other means). "Control" means the power to direct or cause the
direction of the management and policies of a corporation,
partnership, joint venture, or other enterprise.
"Termination of Employment" means the discontinuance of
employment of a Participant for any reason.
Section 3. Administration.
(a) This Plan shall be administered by the Committee. Any grant of
an Option, or authorization of payment in respect of an Option
(pursuant to Article II, Section 1(c)) involving a Participant who is
an officer or director of the Company (as defined in Section 16(b) of
the Securities Exchange Act of 1934 and Rule 3b-2 issued pursuant to
such Act), will be determined and/or approved by a Committee consisting
of "disinterested persons" within the meaning of Rule 16b-3 under such
Act, or any law, rule, regulation or other provision that may hereafter
replace Rule 16b-3.
(b) The Committee shall have the exclusive right to interpret this
Plan and to select (subject to paragraph (a) above) the persons who are
to receive Stock Options under this Plan, including, without
limitation, the determination of the number of Shares to be subject to
and the form, terms, conditions and duration of each Stock Option and
the amendment thereof, consistent with the provisions of this Plan. All
acts and decisions of the Committee with respect to any questions
arising in connection with the administration and interpretation of
this Plan, including the
9
<PAGE>
severability of any and all of the provisions hereof, shall be
conclusive, final and binding upon all Participants.
(c) The Committee may adopt and amend, from time to time, rules
and regulations of general application for the administration of this
Plan, including terms and conditions related to the receipt and
exercise of Options. Such rules and regulations may include, at the
Committee's discretion, the provision by the Company of loans for the
purpose of financing the exercise of Options, and the amount of taxes
payable in connection therewith.
(d) Without limiting the foregoing Sections 3(a), (b) and (c) of
this Article I (and notwithstanding any other provisions of this Plan),
the Committee is authorized to take such action as it reasonably
determines to be necessary or advisable, and fair and equitable to
Participants, with respect to Options in the event of a merger of the
Company with, consolidation of the Company into, or the acquisition of
the Company by another corporation, a sale or transfer of all or
substantially all of the assets of the Company to another corporation
or any other person or entity, a tender or exchange offer for Shares
made by any corporation, person or entity (other than the Company), or
other reorganization in which the Company will not survive as an
independent, publicly owned corporation. The Committee may take such
actions pursuant to this Section 3(d) by adopting rules and regulations
of general applicability to all Participants. The Committee may take
such actions as part of the grants or before or after the public
announcement of any such merger, consolidation, acquisition, sale or
transfer of assets, tender or exchange offer or other reorganization.
Section 4. Share Adjustments. In the event that at any time or
from time to time a stock dividend, stock split, recapitalization,
merger, consolidation, or other change in capitalization, or a sale by
the Company of all or part of its assets, or any distribution to
stockholders other than a cash dividend results in (a) the outstanding
Shares, or any securities exchanged therefor or received in their
place, being exchanged for a different number or class of shares of
stock or other securities of the company, or for shares of stock or
other securities of any other corporation, or (b) new,
10
<PAGE>
different or additional shares or other securities of the Company or
of any other corporation being received by the holders of outstanding
Shares, then:
(i) the limitation of 2,800,000 Shares set forth in Section
l(a) of Article II of this Plan;
(ii) the number and class of Shares that may be subject to Stock
Options and which have not been issued or transferred under Stock
Options; and
(iii) the purchase price to be paid per Share under unexercised
Stock Options; shall in each case be equitably adjusted as determined
by the Committee in its sole discretion.
ARTICLE II. PLAN
----------------
Section 1. Option Shares.
(a) The total number of Shares for which Options may be granted
under this Plan shall not exceed 2,800,000 Shares, subject to: (A) the
adjustments provided for in Section 4 of Article I of this Plan and (B)
the provisions of Section l(b) of this Article II. Such Shares may be
authorized but unissued Shares, or treasury Shares, or both.
(b) In the event that any unexercised Stock Option granted
hereunder lapses or ceases to be exercisable for any reason other than
a surrender of the option pursuant to Section I(c) of this Article II,
the Shares subject to such Option shall again be available for Option
grants under this Plan without again being charged against the
limitation of 2,800,000 Shares set forth in Section l(a) of this
Article II. Any amendment of any Option by the Committee pursuant to
Section 3 of Article I of this Plan shall not be considered the grant
of a new Option.
(c) In the event of Termination of Employment for death,
disability, hardship or unusual circumstances as determined by the
Committee, the Committee may, with the consent of the Participant or
his or her legal representative, authorize payment, in cash or in
Shares, or partly in cash and partly in Shares, as the Committee may
direct, of an amount equal to the difference at the time between the
Fair Market Value of the Shares subject to an Option and the Option
exercise price in consideration of the surrender of the Option. In such
an event the Shares subject to the
11
<PAGE>
Option so surrendered shall be charged against the limitations set
forth in Section 1(a) of this Article II.
Section 2. Incidents of Options.
(a) Each Stock Option shall be granted subject to such terms and
conditions, if any, not inconsistent with this Plan, as shall be
determined by the Committee, including any provisions as to continued
employment as consideration for the grant or exercise of such Option
and any provisions which may be advisable to comply with applicable
laws, regulations or rulings of any governmental authority. Unless
otherwise provided at the time of any Option grant and except as
otherwise specifically provided in this Plan, Options shall only be
exercisable by a Participant as follows:
<TABLE>
<CAPTION>
Percentage of Total
Shares Per Option
Grant Exercisable
-------------------
<S> <C> <C>
1. On and after twelve (12) months
from the Option grant date 33-1/3%
2. On and after twenty-four (24)
months from the Option grant date 66-2/3%
3. On and after thirty-six (36)
months from the Option grant date 100%
</TABLE>
If the application of the foregoing vesting schedule would result in a
fractional Share being issuable upon the exercise of an Option, the
number of Shares vested shall be rounded up to the next full Share, but
not to exceed in the aggregate the original grant total.
Notwithstanding the foregoing, in the event of a disposition of the
majority of the common stock of the Company, or all or a substantial
part of its assets, in one or a series of transactions involving
merger, consolidation, recapitalization, liquidation or dissolution,
conveyance, sale, transfer, assignment, or other method of disposition,
the Options shall then be immediately exercisable by a Participant.
(b) A Stock Option shall not be transferable by the Participant
otherwise than by will or by the laws of descent and distribution or
pursuant to a "qualified domestic relations order" (as defined
12
<PAGE>
by Title I of the Employee Retirement Income Security Act), and shall
be exercisable during the lifetime of the Participant only by him or
her or by his or her guardian or legal representative.
Section 3. Conditions of Options. Options may be granted to
Eligible Participants at such time or times determined by the
Committee, subject to the following terms and conditions: (a) The
Option exercise price per Share shall be established by the Grant but
shall not be less than 100% of the Fair Market Value at the time of
the grant.
(b) The Option may be exercised in full or in part from time to
time prior to Termination of Employment and within ten (10) years from
the date of the grant, or such shorter period as may be specified by
the Committee in the grant, provided that Options exercisable as of the
date of Termination of Employment shall remain exercisable for a period
of up to six (6) months following Termination of Employment (but up to
twelve (12) months if Employment shall have terminated as a result of
death or total and permanent disability as determined by the
Committee); provided, further, that no such period following
Termination of Employment shall extend the original exercise period of
the Option.
(c) In the event of Termination of Employment due to death or
total and permanent disability (as determined by the Committee), all
Options granted more than twelve (12) months prior to such event shall,
notwithstanding Section 2 of this Article II, become immediately
exercisable.
(d) The Option grant may include any other terms and conditions
not inconsistent with this Plan as determined by the Committee.
(e) Notwithstanding any contrary provision contained in this Plan,
with respect to a Participant who is or becomes an officer or director
of the Company, neither the Option nor the Shares issued to the
Participant upon the exercise of such Option may be sold or transferred
until at least six (6) months elapse from the date of the grant of the
Option.
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<PAGE>
ARTICLE III. AMENDMENTS
-----------------------
Section 1. Amendment or Termination of Plan. The Board, the
Committee or any other duly authorized committee of the Board may from
time to time amend this Plan, or discontinue this Plan or any provision
thereof, provided that no amendments to or modifications of this Plan
shall, without the prior approval of the shareholders normally entitled
to vote for the election of directors of the Company:
(a) change the number of Shares for which Stock Options may be
granted, or the percentage thereof which may be made subject to Options
granted to any one Eligible Participant, as set forth in Section l(a)
of Article II of this Plan; (b) make any member of the Committee
eligible for the grant of a Stock Option;
(c) limit or restrict the powers of the Committee with respect to
the administration of this Plan except as may be required by any law,
regulation or governmental order;
(d) materially increase the benefits accruing to Participants
under this Plan; (e) materially modify the requirements as to
eligibility for participation under this
Plan; or
(f) change any of the provisions of this Article III.
Section 2. Effect on Options. No amendment or discontinuance of
this Plan or any provision thereof shall, without the written consent
of the Participant, adversely affect any Stock Option theretofore
granted to such Participant under this Plan.
ARTICLE IV. MISCELLANEOUS
-------------------------
Section 1. Transfer. No Stock Option shall be transferable except
as provided for herein in the case of death. If any Participant makes
such a transfer in violation hereof, any obligation of the Company with
respect to such Option shall forthwith terminate.
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<PAGE>
Section 2. Continued Employment. Nothing in this Plan or any
booklet or other document describing or referring to this Plan shall be
deemed to confer on any employee or Participant the right to continue
in the employ of his or her employer or affect the right of his or her
employer to terminate the employment of any such person with or without
cause.
Section 3. Segregated Fund. Nothing contained herein shall require
the Company to segregate any monies from its general funds, or to
create any trusts, or to make any special deposits for any immediate or
deferred amounts payable to any Participant, nor require the company to
segregate any treasury Shares.
Section 4. Governing Law. This Plan and all actions taken
hereunder shall be governed by the laws of the State of Delaware.
Section 5. Withholding. The Company may make such provisions and
take such steps as it may deem necessary or appropriate for the
withholding of any taxes which the Company is required by any law or
regulation of any governmental authority, whether federal, state or
local, domestic or foreign, to withhold in connection with any Stock
Option or the exercise thereof.
Section 6. Other Plans. This Plan is not intended to and shall not
preclude the establishment or operation by the Company or any
Subsidiary of any thrift, savings and investment, achievement award,
stock purchase, incentive, employee recognition or other benefit plan
or arrangement for any employees and any such other plan may be
authorized and payments made thereunder independently of this Plan.
Section 7. No Right to Options. No employee shall have any
claim or right to be granted an Option under the Plan.
Section 8. Misconduct. If the Committee determines that any
employee has (a) used for profit or disclosed to unauthorized persons
confidential information or trade secrets of the Company or (b)
breached any contract with or violated any fiduciary obligation to the
Company, such employee shall forfeit all rights hereunder to the
receipt or exercise of any Option.
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Section 9. Construction. The Plan is intended to be construed so
that participation in the Plan by any officer or director of the
Company will be exempt from Section 16(b) of the Securities Exchange
Act of 1934 pursuant to regulations and interpretations issued from
time to time by the Securities and Exchange Commission
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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.
33-50406) 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
17
