<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 4, 1995
REGISTRATION NO. 33-60977
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 47-0210602
(State or other jurisdiction 1221, 161, 162, 4813, 4911, 7374 (I.R.S. Employer
of incorporation) (Primary Standard Industrial Identification No.)
Classification Code Numbers)
</TABLE>
<TABLE>
<S> <C>
1000 KIEWIT PLAZA MATTHEW J. JOHNSON, ESQ.
OMAHA, NEBRASKA 68131 VICE PRESIDENT - LEGAL
(402) 342-2052 PETER KIEWIT SONS', INC.
(Address, including zip code, and telephone 1000 KIEWIT PLAZA
number, including area code, of registrant's OMAHA, NEBRASKA 68131
principal executive offices) (402) 342-2052
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
MFS COMMUNICATIONS COMPANY, INC.
<TABLE>
<S> <C> <C>
DELAWARE 4813 47-0714388
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation) Classification Code Numbers) Identification No.)
</TABLE>
--------------------------
<TABLE>
<S> <C>
3555 FARNAM STREET, SUITE 200 TERRENCE J. FERGUSON, ESQ.
OMAHA, NEBRASKA 68131 SENIOR VICE PRESIDENT, GENERAL COUNSEL
(402) 977-5300 AND SECRETARY
(Address, including zip code, and telephone MFS COMMUNICATIONS COMPANY, INC.
number, including area code, of registrant's 3555 FARNAM STREET, SUITE 200
principal executive offices) OMAHA, NEBRASKA 68131
(402) 977-5300
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
--------------------------
COPIES TO:
<TABLE>
<S> <C>
JAMES D. DARROW, ESQ. JOHN S. D'ALIMONTE, ESQ.
SUTHERLAND, ASBILL & BRENNAN STEVEN J. GARTNER, ESQ.
1275 PENNSYLVANIA AVE., N.W. WILLKIE FARR & GALLAGHER
WASHINGTON, D.C. 20004 ONE CITICORP CENTER
(202) 383-0100 153 EAST 53RD STREET
NEW YORK, NEW YORK 10022
(212) 821-8000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE>
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Peter Kiewit Sons', Inc. 60,100 $21.17(1) $1,272,500(2) $439*
Class C Construction & Mining
Group Restricted Redeemable
Convertible Exchangeable Common
Stock, $0.0625 par value
Peter Kiewit Sons', Inc. 2,152,183(3) $59.12(1) $127,227,500(2) $43,872*
Class D Diversified Group
Convertible Exchangeable Common
Stock, $0.0625 par value
MFS Communications 40,091,664(5) 29.375(4) $1,177,692,630(4) $406,101(5)
Company, Inc. Common Stock, $.01
par value
MFS Communications 15,000,000(5) $1.00(6) $15,000,000(6) $5,173(5)
Company, Inc. Series B
Convertible Preferred Stock,
$.01 par value
MFS Communications 347,822(5)(7) -- -- --
Company, Inc. Common Stock, $.01
par value
<FN>
* Previously paid.
(1) Determined pursuant to Rule 457(f)(2) based on weighted average book value
of securities to be received by Peter Kiewit Sons', Inc. in exchange offer
per share of stock to be registered.
(2) Determined pursuant to Rule 457(f)(2) based on aggregate book value of
securities to be received by Peter Kiewit Sons', Inc. in exchange offer per
share of stock to be registered.
(3) Based on an assumed exchange of all of the convertible debentures and an
aggregate of 5,000,000 shares of Class B Stock and Class C Stock of Peter
Kiewit Sons', Inc.
(4) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(f) based upon the high and low sales prices of the Common Stock
of MFS Communications Company, Inc. as reported by the National Association
of Securities Dealers, Inc.'s National Market System on June 9, 1995.
(5) In addition to the securities to be registered pursuant to this
Registration Statement, the offering contemplated by the Prospectus forming
a part of this Registration Statement also includes an aggregate of
40,439,490 shares of Common Stock, par value $.01 per share of MFS
Communications Company, Inc. and 15,000,000 shares of Series B Convertible
Preferred Stock, par value $.01 per share of MFS Communications Company,
Inc. that are covered by Registration Statement No. 33-93504. A filing fee
aggregating $411,274 was previously paid with the earlier registration
statement relating to such 40,439,490 shares of Common Stock par value $.01
per share and 15,000,000 shares of Series B Convertible Preferred Stock par
value $.01 per share.
(6) Estimated based upon the book value per share of $1.00 pursuant to Rule
457(f).
(7) Represents shares of Common Stock of MFS Communications Company, Inc.
issuable upon conversion of the Series B Convertible Preferred Stock.
Pursuant to the provisions of Rule 457(i) a separate registration fee is
not payable.
</TABLE>
--------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
STATEMENT PURSUANT TO RULE 429(b)
THE PROSPECTUS CONTAINED IN THIS REGISTRATION STATEMENT IS A COMBINED
PROSPECTUS WHICH ALSO COVERS SHARES OF COMMON STOCK AND PREFERRED STOCK OF MFS
COMMUNICATIONS COMPANY, INC. COVERED BY REGISTRATION STATEMENT NO. 33-93504.
THIS REGISTRATION STATEMENT ALSO CONSTITUTES PRE-EFFECTIVE AMENDMENT NO. 3 WITH
RESPECT TO REGISTRATION STATEMENT NO. 33-93504.
<PAGE>
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(b) of Regulation S-K
<TABLE>
<CAPTION>
ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
--------------------------------------------------- ---------------------------------------------
A. INFORMATION ABOUT THE TRANSACTION
<C> <S> <C>
1. Forepart of Registration Statement and
Outside Front Cover Page of
Prospectus............................. Outside Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover
Pages of Prospectus.................... Inside Front Cover Page of Prospectus;
Available Information; Incorporation of
Certain Documents by Reference; Table of
Contents
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information.......... Prospectus Summary; Risk Factors
4. Terms of the Transaction................ Prospectus Summary; Overview; The Exchange
Offer; The Spin-Off; Description of
Securities
5. Pro Forma Financial Information......... Selected Historical and Pro Forma Financial
Data; Pro Forma Financial Information of PKS
6. Material Contacts with the Company Being
Acquired............................... Certain Transactions
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters.............. Not Applicable
8. Interests of Named Experts and Counsel.. Not Applicable
9. Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities............................ Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10. Information with Respect to S-3
Registrants............................ Available Information; Incorporation of
Certain Documents by Reference; Recent
Developments
11. Incorporation of Certain Information by
Reference.............................. Incorporation of Certain Documents by
Reference
12. Information with Respect to S-2 or S-3
Registrants............................ Not Applicable
13. Incorporation of Certain Information by
Reference.............................. Not Applicable
14. Information With Respect to Registrants
Other Than S-3 or S-2 Registrants...... Not Applicable
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information with Respect to S-3
Companies.............................. Available Information; Incorporation of
Certain Documents by Reference; Recent
Developments
16. Information With Respect to S-2 or S-3
Companies.............................. Not Applicable
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ITEM NUMBER AND CAPTION LOCATION IN PROSPECTUS
--------------------------------------------------- ---------------------------------------------
<C> <S> <C>
17. Information With Respect to Companies
Other Than S-3 or S-2 Companies........ Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited..... Not Applicable
19. Information if Proxies, Consents or
Authorizations are not to be Solicited
or in an Exchange Offer................ Incorporation of Certain Documents by
Reference; Certain Transactions
</TABLE>
<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. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN 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.
<PAGE>
SUBJECT TO COMPLETION AUGUST 4, 1995
JOINT PROSPECTUS
PETER KIEWIT SONS', INC.
OFFER TO EXCHANGE
(i) Class D Stock for Outstanding Class B Stock and Class C Stock,
(ii) Class C Stock and Class D Stock for 1990 Series Convertible Debentures
due October 31, 2000 and 1991 Series Convertible Debentures due October 31, 2001
and
(iii) Class D Stock for 1993 Series Class D Convertible Debentures due October
31, 2003
Dividend Distribution by Peter Kiewit Sons', Inc.
to the Holders of Class D Stock
of
40,091,644 Shares of Common Stock
and
15,000,000 Shares of Series B Convertible Preferred Stock
of
MFS COMMUNICATIONS COMPANY, INC.
The Exchange Offer described herein will expire at 5:00 p.m., Omaha,
Nebraska time, on , 1995, unless extended.
Peter Kiewit Sons', Inc., a Delaware corporation ("PKS" or the "Company"),
hereby offers to exchange (i) shares of its Class D Diversified Group
Convertible Exchangeable Common Stock, par value $0.0625 per share ("Class D
Stock") for any and all outstanding shares of its Class B Construction & Mining
Group Nonvoting Restricted Redeemable Convertible Exchangeable Common Stock, par
value $0.0625 per share ("Class B Stock") and Class C Construction & Mining
Group Restricted Redeemable Convertible Exchangeable Common Stock, par value
$0.0625 per share ("Class C Stock"), (ii) shares of Class C Stock and Class D
Stock for any and all of PKS's outstanding 1990 Series Convertible Debentures
due October 31, 2000 and 1991 Series Convertible Debentures due October 31, 2001
(such shares of Class C Stock will then be exchangeable for Class D Stock
pursuant to the Exchange Offer) and (iii) shares of Class D Stock for any and
all of PKS's outstanding 1993 Series Class D Convertible Debentures due October
31, 2003, all on the terms and subject to the conditions set forth herein and in
the related Letter of Transmittal (which together constitute the "Exchange
Offer"). For a discussion of certain tax consequences of the Exchange Offer, see
"The Exchange Offer -- Certain United States Federal Income Tax Considerations
Relating to the Exchange Offer." The Class C Stock and the Class D Stock so
offered in the Exchange Offer are sometimes referred to collectively herein as
the "Offered Stock," PKS's convertible debentures described above are sometimes
referred to collectively herein as the "Exchangeable Debentures," the Class B
Stock and Class C Stock are sometimes collectively referred to herein as the
"Exchangeable Stock," and the Exchangeable Debentures and the Exchangeable Stock
are sometimes referred to collectively herein as the "Exchangeable Securities."
See "Certain Definitions" for definitions of certain other terms used herein.
This Joint Prospectus (the "Prospectus") also relates to a proposal by PKS
to make a dividend distribution to the holders of its Class D Stock, including
Class D Stock issued in the Exchange Offer, of all
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THESE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
--------------------------
THE DATE OF THIS PROSPECTUS IS , 1995.
(COVER CONTINUED ON FOLLOWING PAGE)
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
the shares of capital stock of MFS Communications Company, Inc., a Delaware
corporation and a majority-owned subsidiary of PKS ("MFS"), held by PKS
immediately before that distribution, all on the terms and subject to the
conditions set forth herein (the "Spin-off"). If the Spin-off occurs, the
capital stock of MFS distributed in the Spin-off will consist of (i) 40,091,644
shares of common stock, par value $.01 per share (the "MFS Common Stock") and
(ii) 15,000,000 shares of Series B convertible preferred stock, par value $.01
per share (the "MFS Preferred Stock"). Such 40,091,644 shares of MFS Common
Stock and 15,000,000 shares of MFS Preferred Stock are collectively referred to
herein as the "Spin-off Stock". No holder of Class D Stock will be required to
pay any cash or other consideration, to surrender or exchange shares of Class D
Stock or any other security, or to take any other action in order to receive the
Spin-off Stock pursuant to the Spin-off. PKS has received a ruling from the
Internal Revenue Service (the "IRS") confirming that the Spin-off will be
tax-free to the holders of Class D Stock for United States federal income tax
purposes (the "Ruling"). See "The Spin-off -- Certain United States Federal
Income Tax Considerations Relating to the Spin-off."
The Spin-off and the Exchange Offer are both subject to the approval of the
MFS Recapitalization (as defined herein) by a favorable vote of a majority of
the holders of MFS Common Stock voting at the MFS 1995 annual stockholders
meeting. See "Overview -- The MFS Recapitalization" and the "The Exchange Offer
-- Conditions to the Exchange Offer." IF SUCH FAVORABLE VOTE IS NOT RECEIVED,
THE EXCHANGE OFFER WILL BE ABANDONED, AND THE SPIN-OFF WILL NOT OCCUR. FURTHER,
PKS RESERVES THE RIGHT TO ABANDON THE EXCHANGE OFFER, OR BOTH THE EXCHANGE OFFER
AND THE SPIN-OFF, IF THE PKS BOARD OF DIRECTORS DETERMINES AT ANY TIME THAT SUCH
ABANDONMENT WOULD BE IN THE BEST INTEREST OF PKS AND ITS STOCKHOLDERS, AND PKS
WILL ABANDON THE EXCHANGE OFFER IF IT ABANDONS THE SPIN-OFF. See "The Exchange
Offer -- Right of PKS to Extend, Abandon or Modify the Exchange Offer or Defer
Acceptance of Tendered Exchangeable Securities" and "The Spin-off -- Conditions
to the Spin-off; Right of PKS to Abandon, Defer or Modify the Spin-off." Thus,
there is no assurance that either the Exchange Offer or the Spin-off will be
consummated, but if the Exchange Offer is consummated, the Spin-off will be
consummated promptly thereafter.
PKS ALSO RESERVES THE RIGHT TO EXTEND THE EXCHANGE OFFER OR TO MODIFY IN ANY
MANNER THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER OR THE SPIN-OFF OR TO
DEFER THE CONSUMMATION OF THE EXCHANGE OFFER AND THE SPIN-OFF IF THE PKS BOARD
OF DIRECTORS DETERMINES AT ANY TIME THAT SUCH ACTION WOULD BE IN THE BEST
INTEREST OF PKS AND ITS STOCKHOLDERS. MODIFICATION OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER MAY INCLUDE THE IMPOSITION BY PKS OF A LIMIT ON THE NUMBER
OF SHARES OF EXCHANGEABLE STOCK THAT WILL BE ACCEPTED BY PKS IN THE EXCHANGE
OFFER. SEE "THE EXCHANGE OFFER -- RIGHT OF PKS TO EXTEND, ABANDON OR MODIFY THE
EXCHANGE OFFER OR DEFER ACCEPTANCE OF TENDERED EXCHANGEABLE SECURITIES" AND "THE
SPIN-OFF -- CONDITIONS TO THE SPIN-OFF; RIGHT OF PKS TO ABANDON, DEFER OR MODIFY
THE SPIN-OFF."
The Exchange Offer is not conditioned upon any minimum amount of
Exchangeable Securities being tendered for exchange. The Exchange Offer will
expire at 5:00 p.m., Omaha, Nebraska time, on , 1995, unless
extended (such date, as it may be extended, being referred to herein as the
"Expiration Date"). Exchangeable Securities tendered pursuant to the Exchange
Offer may be withdrawn as described herein prior to the Expiration Date;
thereafter, such tenders are irrevocable by the tendering securityholders.
PARTICIPATION IN THE EXCHANGE OFFER IS VOLUNTARY. SEE "RISK FACTORS" FOR A
DESCRIPTION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BEFORE A HOLDER OF
EXCHANGEABLE SECURITIES DECIDES WHETHER TO PARTICIPATE IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS RECOMMENDS THAT HOLDERS OF EXCHANGEABLE DEBENTURES
TENDER SUCH EXCHANGEABLE DEBENTURES IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS MAKES NO RECOMMENDATION WITH RESPECT TO WHETHER
HOLDERS OF EXCHANGEABLE STOCK SHOULD TENDER SUCH EXCHANGEABLE STOCK IN THE
EXCHANGE OFFER.
Any holder of Exchangeable Securities desiring to participate in the
Exchange Offer should follow the procedures set forth in "The Exchange Offer --
Procedure for Tendering Exchangeable Securities; Exchange of Exchangeable
Securities; Delivery of Offered Stock." Except as described therein, any holder
of Exchangeable Securities who has pledged such Exchangeable Securities to a
lender and who desires to participate in the Exchange Offer must contact such
lender to arrange for the tender of such Exchangeable Securities.
All information contained in this Prospectus with respect to PKS has been
provided by PKS. All information contained in this Prospectus with respect to
MFS has been provided by MFS. Questions and requests for assistance or for
additional copies of this Prospectus and the Letter of Transmittal should be
directed to Michael A. Kelley, Stock Registrar, Peter Kiewit Sons', Inc., 1000
Kiewit Plaza, Omaha, Nebraska 68131, telephone (402) 271-2870, telecopy (402)
271-2965.
(END OF COVER PAGE)
ii
<PAGE>
NEITHER PKS NOR MFS HAS ANY ARRANGEMENT WITH ANY BROKER, DEALER, SALESMAN OR
OTHER PERSON TO SOLICIT TENDERS OF EXCHANGEABLE SECURITIES. NO PERSON IS
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED
IN THIS PROSPECTUS IN CONNECTION WITH THE EXCHANGE OFFER, THE SPIN-OFF OR THE
OTHER MATTERS DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PKS OR
MFS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY EXCHANGE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF PKS OR MFS SINCE THE RESPECTIVE DATES AS OF WHICH
INFORMATION IS GIVEN HEREIN OR IN DOCUMENTS INCORPORATED HEREIN. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO EXCHANGE, OR A SOLICITATION OF AN OFFER TO
EXCHANGE, THE SECURITIES OFFERED BY THIS PROSPECTUS IN ANY JURISDICTION OR FROM
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
PKS and MFS are each subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, file reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed by
each of PKS and MFS can be inspected and copied at the Public Reference Room of
the Securities and Exchange Commission (the "Commission") at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the public reference
facilities maintained by the Commission at 7 World Trade Center, Suite 1300, New
York, New York 10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. In addition, material relating to MFS can be inspected
at the offices of the Nasdaq National Market, 1735 K Street, N.W., Washington,
D.C. 20005-1506.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-4 and exhibits relating thereto, including
amendments (the "Registration Statement"), of which this Prospectus is a part,
and which PKS and MFS have filed with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). Reference is made to such Registration
Statement for further information with respect to PKS, MFS and the Spin-off
Stock and the Offered Stock offered hereby. Statements contained herein
concerning the provisions of documents are necessarily summaries of such
documents, and each statement is qualified in its entirety by reference to the
copy of the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed on the dates indicated by PKS with
the Commission pursuant to the Exchange Act are hereby incorporated by reference
into this Prospectus:
1. Annual Report of PKS on Form 10-K for the year ended December 31, 1994
on March 31, 1995, as amended by Form 10-K/A Amendment No. 1 on April 27,
1995 and Form 10-K/A Amendment No. 2 on August 4, 1995;
2. Quarterly Report of PKS on Form 10-Q for the quarter ended March 31,
1995, as amended by Form 10-Q/A Amendment No. 1 on June 9, 1995; and
3. The Proxy Statement of PKS filed with the Commission on May 1, 1995.
The following documents previously filed on the dates indicated by MFS with
the Commission pursuant to the Exchange Act are hereby incorporated by reference
into this Prospectus:
1. Annual Report of MFS on Form 10-K for the year ended December 31, 1994,
as amended by Form 10-K/A Amendment No. 1 on April 10, 1995 and Form
10-K/A Amendment No. 2 on May 15, 1995;
iii
<PAGE>
2. (i) Current Report of MFS on Form 8-K dated May 18, 1994 (excluding the
pages of the Quarterly Report on Form 10-Q for the quarter ended March
31, 1994 of Centex Telemanagement, Inc. incorporated by reference therein
and attached thereto), as amended by Form
8-K/A Amendment No. 1 on June 29, 1994 and Form 8-K/A Amendment No. 2 on
August 31, 1994, (ii) Current Report on Form 8-K dated November 2, 1994,
as amended by Form 8-K/A Amendment No. 1 on December 13, 1994, (iii)
Current Report on Form 8-K dated April 14, 1995 and (iv) Current Report
on Form 8-K, dated May 22, 1995;
3. Quarterly Report of MFS on Form 10-Q for the quarter ended March 31,
1995 filed with the Commission on May 12, 1995;
4. The description of the MFS Common Stock contained in MFS's Registration
Statement on Form 8-A (File No. 0-21594) filed with the Commission
pursuant to Section 12(g) of the Exchange Act on April 21, 1993, as
amended by Amendment No. 1 filed with the Commission on a Form 8 on May
10, 1993; and
5. The Preliminary Proxy Statement of MFS filed with the Commission on June
23, 1995.
In addition, all reports and other documents filed by PKS and MFS,
respectively, pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date hereof and prior to the date on which the Spin-off is
consummated shall be deemed to be incorporated by reference herein from the date
of filing of such reports or documents. Any statement contained in a report or
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
THE STOCK REGISTRAR, PETER KIEWIT SONS', INC., 1000 KIEWIT PLAZA, OMAHA,
NEBRASKA 68131 (TELEPHONE: (402) 271-2870; TELECOPY (402) 271-2965). IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE MADE BY
, 1995. PKS undertakes to provide without charge to each person,
including a beneficial owner, to whom a copy of this Prospectus is delivered,
upon the written or oral request of such person, a copy of any or all of the
information incorporated by reference in this Prospectus, other than exhibits to
such information (unless such exhibits are specifically incorporated by
reference into the information that this Prospectus incorporates).
iv
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
PROSPECTUS SUMMARY.................................................................... 1
RISK FACTORS.......................................................................... 15
RISK FACTORS RELATING TO THE EXCHANGE OFFER, SPIN-OFF AND PKS SECURITIES............ 15
RISK FACTORS RELATING TO MFS........................................................ 27
OVERVIEW.............................................................................. 31
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA...................................... 43
THE EXCHANGE OFFER.................................................................... 49
THE SPIN-OFF.......................................................................... 55
CERTAIN TRANSACTIONS.................................................................. 61
RECENT DEVELOPMENTS................................................................... 65
DESCRIPTION OF SECURITIES............................................................. 68
LEGAL MATTERS......................................................................... 78
EXPERTS............................................................................... 78
CERTAIN DEFINITIONS................................................................... 79
INDEX TO FINANCIAL STATEMENTS......................................................... F-1
</TABLE>
v
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING IS A SUMMARY OF CERTAIN INFORMATION CONTAINED ELSEWHERE OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS. AS THIS SUMMARY IS NECESSARILY
INCOMPLETE, REFERENCE IS MADE TO, AND THIS SUMMARY IS QUALIFIED IN ITS ENTIRETY
BY, THE MORE DETAILED INFORMATION INCLUDED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. CAPITALIZED TERMS USED BUT NOT DEFINED IN THIS SUMMARY HAVE THE
MEANINGS ASSIGNED TO THEM IN "CERTAIN DEFINITIONS" OR ELSEWHERE IN THIS
PROSPECTUS. SECURITYHOLDERS ARE URGED TO READ THIS PROSPECTUS IN ITS ENTIRETY.
PETER KIEWIT SONS', INC.
Peter Kiewit Sons', Inc. is a Delaware corporation. Its principal executive
offices are located at 1000 Kiewit Plaza, Omaha, Nebraska 68131. Its telephone
number is (402) 342-2052. PKS is engaged in the following businesses:
construction, mining, data management, telecommunications and energy production
facilities.
MFS COMMUNICATIONS COMPANY, INC.
MFS Communications Company, Inc., a Delaware corporation and a
majority-owned subsidiary of PKS, is organized as a holding company and operates
through its subsidiaries in two business segments: telecommunications services,
through MFS Telecom, Inc. ("MFS Telecom"), MFS Intelenet, Inc. ("MFS
Intelenet"), MFS Datanet, Inc. ("MFS Datanet") and MFS International, Inc. ("MFS
International"); and network systems integration, primarily though MFS Network
Technologies, Inc. ("MFS Network Technologies"). In addition, MFS Development, a
division of MFS, acts as an internal network development resource for the
planning and construction of MFS's own networks. MFS reported a net loss of
$13.1 million, $15.8 million and $151.2 million for the three years ended
December 31, 1992, 1993 and 1994, respectively, and $63.9 million for the three
months ended March 31, 1995.
MFS's strategy is to become a primary provider of telecommunications
services to business and government customers. MFS deploys its own networks and
facilities and leases network capacity from other service providers in order to
provide a broad array of high quality voice, data and other services
specifically designed to meet the requirements of the customer. MFS also serves
a growing number of long distance carriers, resellers, service aggregators,
shared tenant service providers, cellular providers and radio providers that
incorporate MFS's switched, special access and private line services into the
services that those firms offer to their customers.
TELECOMMUNICATIONS SERVICES
- MFS Telecom provides dedicated circuits for critical telecommunications
needs, and pursuant to MFS's authorization from the state of New York,
recently began offering switched services to its customers. These services
are provided over state-of-the-art digital fiber optic networks. Typical
customers for MFS Telecom are large business and government customers. In
addition, MFS is authorized by the appropriate regulatory authorities to
provide switched services in the states of Illinois, Maryland,
Massachusetts, Michigan and Washington, although currently MFS Telecom
does not offer switched services in those jurisdictions.
- MFS Intelenet provides a single source of integrated local and long
distance telecommunications services and facilities management, primarily
for medium and small businesses, utilizing MFS's own network and switching
platform as well as the facilities of other providers.
- MFS Datanet provides high-speed data communications over an Asynchronous
Transfer Mode ("ATM") network. Among the services offered by MFS Datanet
is the connection of Local Area Networks ("LANs") across town or across
the country at the same native speed and protocol as that at which the
LANs operate. MFS Datanet offers high-speed LAN interconnect services
including Frame Relay, Ethernet, Token Ring, and FDDI utilizing its ATM
network.
1
<PAGE>
- MFS International currently offers communications services to businesses
between and within London, Paris and Frankfurt, and is currently
developing networks in Stockholm and Zurich. MFS International was created
to take advantage of international opportunities and to better serve MFS's
existing customer base of multinational companies. MFS International
currently plans to develop additional networks and services in primary
international business centers in Europe and Asia, and is in the process
of evaluating potential opportunities in these business centers.
NETWORK SYSTEMS INTEGRATION
- MFS Network Technologies provides network systems integration for MFS and
third parties who deploy sophisticated networks. Such projects and
applications include voice and data networks, interactive distance
learning networks, security systems, combined cable television-telephone
networks, and intelligent transportation systems.
MFS was incorporated in Delaware in 1987. Its principal executive offices
are located at 3555 Farnam Street, Suite 200, Omaha, Nebraska, 68131, and its
telephone number is (402) 977-5300.
MFS RECAPITALIZATION AND OTHER PRELIMINARY TRANSACTIONS
In order to satisfy certain requirements of applicable tax law relating to
the Spin-off that are addressed by the Ruling, PKS and Kiewit Diversified Group
Inc., a wholly owned first-tier subsidiary of PKS ("KDG"), have agreed with MFS
to effect the MFS Recapitalization pursuant to which KDG would exchange
2,900,000 of the 42,962,658 shares of MFS Common Stock currently held by KDG for
15,000,000 shares of MFS Preferred Stock. The MFS Recapitalization will be
consummated immediately prior to the Spin-off. The MFS Recapitalization has been
approved by the MFS Board of Directors, and by a special committee of the MFS
Board of Directors comprised solely of independent directors of MFS.
Consummation of the MFS Recapitalization is subject to the approval of the MFS
Recapitalization by the holders of MFS Common Stock at the MFS 1995 annual
stockholders meeting, presently expected to be held on August , 1995. In
connection with obtaining approval of the holders of MFS Common Stock, PKS has
agreed to vote all of the shares of MFS Common Stock owned or controlled by it
in the same manner as the majority of the non-PKS holders of MFS Common Stock
(and not the holders of any preferred stock of MFS which may be outstanding)
present in person or by proxy at the meeting vote. Thus, the MFS
Recapitalization will be approved only if supported by a majority of such
non-PKS stockholders of MFS. If the MFS Recapitalization is not approved by the
holders of MFS Common Stock, the MFS Preferred Stock will not be issued, the
Exchange Offer will be abandoned and the Spin-off will not occur. See "Overview
-- The MFS Recapitalization" and "Description of Securities -- MFS Preferred
Stock." Subsequent to the consummation of the MFS Recapitalization, KDG will
distribute as a dividend to PKS the 40,062,658 shares of MFS Common Stock and
15,000,000 shares of MFS Preferred Stock then held by it. Immediately after
receiving such dividend and prior to the Spin-off, PKS will purchase 28,986
additional shares of MFS Common Stock from MFS for $1,000,000. See "Overview --
The Spin-off."
THE EXCHANGE OFFER
<TABLE>
<S> <C>
Terms................................... The Exchange Offer will be consummated on the terms and subject to the conditions
contained in this Prospectus and the related Letter of Transmittal. PKS will offer,
pursuant to the Exchange Offer, to exchange (i) .416598 shares of Class D Stock for each
outstanding share of Class B Stock and Class C Stock (including all shares of Class C
Stock issued in exchange for Exchangeable Debentures), (ii) 24.75 shares of Class C Stock
and 24.75 shares of Class D Stock for each $1,000 in principal amount of each outstanding
1990 Series
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
Class C and D Debenture; (such shares of Class C Stock will then be exchangeable for a
total of 10.31 shares of Class D Stock pursuant to the Exchange Offer) (iii) 22.98 shares
of Class C Stock and 22.98 shares of Class D Stock for each $1,000 in principal amount of
each outstanding 1991 Series Class C and D Debenture; (such shares of Class C Stock will
then be exchangeable for a total of 9.57 shares of Class D Stock pursuant to the Exchange
Offer) and (iv) 19.97 shares of Class D Stock for each $1,000 in principal amount of each
outstanding 1993 Series Class D Debenture, that in each case is validly tendered and not
properly withdrawn prior to the Expiration Date. See "The Exchange Offer -- Withdrawal
Rights" and "Description of Securities -- PKS Stock." There are no dissenter's rights of
appraisal in connection with the Exchange Offer.
Expiration Date......................... The Exchange Offer will be open until the Expiration Date, which will be [ ],
1995 unless the Exchange Offer is extended as described herein. See "The Exchange Offer --
Terms of the Exchange Offer" and "-- Right of PKS to Extend, Abandon or Modify the
Exchange Offer or Defer Acceptance of Tendered Exchangeable Securities."
Tender Procedure........................ To tender Exchangeable Securities pursuant to the Exchange Offer, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), any other documents required
by PKS and certificates for the Exchangeable Securities to be tendered must be received by
PKS prior to 5:00 p.m., Omaha, Nebraska time, on the Expiration Date. See "The Exchange
Offer -- Procedure for Tendering Exchangeable Securities; Exchange of Exchangeable
Securities; Delivery of Offered Stock."
Potential Proration..................... PKS does not anticipate that it will be necessary to impose a limit on the amount of
Exchangeable Stock that may be exchanged in the Exchange Offer; however, the PKS Board of
the Directors may impose such a limit if it determines that acceptance of all tendered
Exchangeable Stock would not be in the best interest of PKS and its stockholders. If the
PKS Board were to take such action, it would impose such limit on the Exchangeable Stock
tendered (but not on the Exchangeable Debentures tendered) on a pro rata basis and would
follow the procedures otherwise applicable to a modification of the Exchange Offer. See
"The Exchange Offer -- Right of PKS to Extend, Abandon or Modify the Exchange Offer or
Defer Acceptance of Tendered Exchangeable Securities."
Intentions of Certain Significant
Stockholders Regarding
Participation in the Exchange
Offer.................................. With certain exceptions, including Messrs. Walter Scott, Jr., and Robert Julian, the
directors of PKS and of Kiewit Construction Group Inc., a wholly owned first tier
subsidiary of PKS ("KCG"), have advised PKS in writing that they will not tender in the
Exchange Offer any shares of Class C Stock held
</TABLE>
3
<PAGE>
<TABLE>
<S> <C>
by them. Messrs. Scott and Julian expect to tender, in the aggregate, 785,892 shares of
Class C Stock pursuant to the Exchange Offer. See "Certain Transactions -- Intentions of
Certain Significant Stockholders Regarding Participation in Exchange Offer." PKS expects
that all Exchangeable Debentures, including those held by the directors of PKS and KCG,
will be tendered pursuant to the Exchange Offer.
Withdrawal Rights....................... Exchangeable Securities tendered pursuant to the Exchange Offer may be withdrawn at any
time prior to the Expiration Date without penalty on the terms and conditions contained
herein. However, once the Expiration Date has occurred, a tender of Exchangeable
Securities is irrevocable by the tendering securityholder. See "The Exchange Offer --
Withdrawal Rights."
Fractional Shares....................... In lieu of issuing fractional shares, PKS will round the number of shares of Offered Stock
to be received by a tendering securityholder to the nearest whole number of shares without
any additional consideration being payable by or to such holder. See "The Exchange Offer
-- Terms of the Exchange Offer."
Conditions of the Exchange Offer........ Consummation of the Exchange Offer is conditioned upon consummation of the MFS
Recapitalization, which is subject to the approval by the holders of MFS Common Stock at
the MFS 1995 annual stockholders meeting. In connection with obtaining the approval of the
holders of MFS Common Stock, PKS has agreed to vote all of the shares of MFS Common Stock
owned or controlled by it in the same manner as the majority of the non-PKS holders of MFS
Common Stock (and not the holders of any preferred stock of MFS which may be outstanding)
present in person or by proxy at the meeting vote. Thus, as described above under "MFS
Recapitalization," the MFS Recapitalization will be approved only if supported by a
majority of the non-PKS stockholders of MFS. The 1995 MFS annual meeting of stockholders
is presently expected to be held on [August], 1995. If such approval is not received, the
Exchange Offer will not be consummated.
Further, the Exchange Offer will not be consummated unless the Ruling received by PKS,
confirming that the Spin-off and certain related transactions will be consummated on a
tax-free basis to the holders of Class D Stock for United States federal income tax
purposes, remains substantially in effect as of the date of the consummation of the
Exchange Offer. See "The Exchange Offer -- Conditions to the Exchange Offer." There are no
federal or state regulatory requirements or approvals that must be complied with or
obtained as a condition of the Exchange Offer.
Right to Abandon or Modify
Exchange Offer or
Defer Acceptance....................... If the PKS Board determines for any reason that such action would be in the best interest
of PKS and its stockholders, PKS may (i) modify the Exchange Offer and, subject to the
</TABLE>
4
<PAGE>
<TABLE>
<S> <C>
withdrawal rights described herein, retain all tendered securities until the expiration of
the Exchange Offer as so modified; (ii) abandon the Exchange Offer and promptly return all
tendered securities to tendering securityholders; or (iii) subject to the rights of
withdrawal described herein, defer acceptance for exchange of any Exchangeable Securities.
PKS will abandon the Exchange Offer in the event it abandons the Spin-off. See "The
Exchange Offer -- Right of PKS to Extend, Abandon or Modify the Exchange Offer or Defer
Acceptance of Tendered Exchangeable Securities."
Certain Tax Considerations.............. Pursuant to the Ruling, for United States federal income tax purposes neither PKS nor the
holders of Exchangeable Debentures will recognize any gain or loss on an exchange of
Offered Stock for Exchangeable Debentures. In addition, pursuant to an opinion of counsel,
although the issue is not free from doubt, for United States federal income tax purposes
neither PKS nor the holders of Exchangeable Stock should recognize any gain or loss on an
exchange of Offered Stock for Exchangeable Stock. In those events, the holders' tax bases
in the Offered Stock will be the same as their bases in the Exchangeable Securities, and
the holders' holding periods for the Offered Stock generally will include their holding
periods for the Exchangeable Securities. See "The Exchange Offer -- Certain United States
Federal Income Tax Considerations Relating to the Exchange Offer."
</TABLE>
PARTICIPATION IN THE EXCHANGE OFFER IS VOLUNTARY. SEE "RISK FACTORS" FOR A
DESCRIPTION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BEFORE A HOLDER OF
EXCHANGEABLE SECURITIES DECIDES WHETHER TO PARTICIPATE IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS RECOMMENDS THAT HOLDERS OF EXCHANGEABLE DEBENTURES
TENDER SUCH EXCHANGEABLE DEBENTURES IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS MAKES NO RECOMMENDATION WITH RESPECT TO WHETHER
HOLDERS OF EXCHANGEABLE STOCK SHOULD TENDER SUCH EXCHANGEABLE STOCK IN THE
EXCHANGE OFFER.
THE SPIN-OFF
<TABLE>
<S> <C>
Manner of Distribution.................. The Spin-off will be declared and be effected on the Spin-off Date to holders of record of
Class D Stock (including Class D Stock issued in the Exchange Offer) on such date in the
event the conditions described under "The Spin-off -- Conditions to the Spin-off; Right of
PKS to Abandon, Defer or Modify the Spin-off" are satisfied, unless the PKS Board of
Directors has exercised its right to abandon the Spin-off if it determines for any reason
that such abandonment is in the best interest of PKS and its stockholders. No holder of
Class D Stock will be required to pay any cash or other consideration, to surrender or
exchange shares of Class D Stock or any other security or to take any other action in
order to receive the Spin-off Stock pursuant to the Spin-off. There are no dissenter's
rights of appraisal in connection with the Spin-Off.
</TABLE>
5
<PAGE>
<TABLE>
<S> <C>
Spin-off Stock.......................... The Spin-off Stock will consist of a total of 40,091,644 shares of MFS Common Stock, which
will constitute the major portion of the Spin-off Stock in terms of value, and a total of
15,000,000 shares of MFS Preferred Stock, which will constitute a minor portion of the
Spin-off Stock in terms of value. The number of shares of Spin-off Stock to be distributed
in respect of each outstanding share of Class D Stock cannot be precisely determined prior
to the Expiration Date of the Exchange Offer. The following table sets forth PKS's
estimates of the number of shares of MFS Common Stock and MFS Preferred Stock to be
distributed per share of Class D Stock outstanding at the time of the Spin-Off, assuming
that (i) all of the Exchangeable Debentures are exchanged for Offered Stock in the
Exchange Offer and (ii) the stated number of shares of Exchangeable Stock are exchanged
for Class D Stock in the Exchange Offer:
</TABLE>
<TABLE>
<CAPTION>
ESTIMATED NUMBER OF ESTIMATED NUMBER OF
SHARES OF MFS SHARES OF MFS
COMMON STOCK PREFERRED STOCK
ASSUMED NUMBER OF DISTRIBUTED PER DISTRIBUTED PER
SHARES OF EXCHANGEABLE SHARE OF CLASS D SHARE OF CLASS D
STOCK EXCHANGED(1) STOCK(2) STOCK(2)
---------------------- -------------------- --------------------
<S> <C> <C>
3,000,000 1.77 0.66
5,000,000 1.71 0.64
<FN>
------------------------------
(1) The 3,000,000 share assumption reflects PKS's estimate of the number
of shares of Exchangeable Stock likely to be tendered in the Exchange
Offer, based upon the tender indications that PKS has received from
members of the PKS Board of Directors and members of the KCG Board of
Directors, and PKS's estimates of the likely number of additional
tenders. The 5,000,000 share assumption is set forth solely to
illustrate the impact of the tender of substantially more shares than
anticipated by PKS. PKS does not believe that a tender of 5,000,000
shares is likely.
(2) The estimate of the number of shares of MFS Common Stock and MFS
Preferred Stock distributed per share of Class D Stock was determined
by dividing the total number of each class of shares to be
distributed by the sum of (i) the number of shares of Class D Stock
currently outstanding, (ii) in each case, the number of shares of
Class D Stock that would be issued upon tender of the assumed number
of shares of Exchangeable Stock, and (iii) the number of shares of
Class D Stock that would be issued upon exchange of all Exchangeable
Debentures.
</TABLE>
<TABLE>
<S> <C>
The MFS Preferred Stock is subject, by its terms, to stringent restrictions on transfer.
In addition, KDG has agreed to grant to the Secretary and Assistant Secretary of MFS an
irrevocable proxy to vote all of the shares of MFS Preferred Stock in proportion to the
vote of the holders of MFS Common Stock on all matters other than the election of MFS
directors and matters as to which the holders of MFS Preferred Stock vote as a separate
class under Delaware corporation law. Holders of Class D Stock will receive MFS Preferred
Stock in the Spin- off subject to such irrevocable proxy. In lieu of issuing fractional
shares of Spin-off Stock, PKS will round fractional shares to whole shares without
affecting the total number of shares of Spin-off Stock. See "The Spin-off -- Manner of
Effecting the Distribution" and "-- Listing and Trading of Spin-off Stock."
</TABLE>
6
<PAGE>
<TABLE>
<S> <C>
Spin-off Date........................... The date as of which the Spin-off dividend is declared is referred to herein as the
"Spin-off Date." The Spin-off Date will also be the record date for determining the
holders of Class D Stock (including Class D Stock issued in the Exchange Offer) entitled
to receive the Spin-off Stock. PKS currently anticipates that the Spin-off Date will be
the day after the Expiration Date and that the Spin-off Stock will be transferred on the
books and records of MFS to holders of Class D Stock on or promptly after the Spin-off
Date. Certificates representing Spin-off Stock however, might not be mailed to holders of
Class D Stock (or to lenders to which such Class D Stock is pledged) until three to four
weeks after the Spin-off Date. See "The Spin-off -- Manner of Effecting the Distribution."
Holders of Class D Stock should not attempt to sell or transfer MFS Common Stock received
pursuant to the Spin-off until they have received the certificates evidencing such stock.
Trading of Spin-off Stock............... MFS Common Stock is currently traded on the Nasdaq National Market under the symbol
"MFST," and MFS expects that it will continue to be traded on the Nasdaq National Market
or a national securities exchange. The ability of a holder of MFS Common Stock to realize
value upon a sale of such stock will be entirely dependent on the market for the MFS
Common Stock. The directors of MFS and PKS who will receive Spin-off Stock in the Spin-off
(other than one director of PKS who became a director in 1995) have agreed to certain
limitations on the transferability of such stock. Notwithstanding these agreements, a
substantial number of shares of MFS Common Stock will become available for future sale in
the public market as a result of the Spin-off. Sales of substantial amounts of such shares
in the public market could adversely affect the market price of the MFS Common Stock. On
[ ], 1995 the last reported sale price of the MFS Common Stock as reported by
the Nasdaq National Market was $[ ] per share. See "Risk Factors -- Risk Factors
Relating to the Exchange Offer, the Spin-off and PKS Securities -- Effect of Spin-off on
Class D Per Share Price; Value of Spin-off Stock Dependent on Market."
The MFS Preferred Stock is non-transferable for a period of six years from the date of its
issuance with limited exceptions, is convertible into MFS Common Stock at the option of
the holder beginning on the first anniversary of the date of issuance thereof and is
redeemable at the option of MFS beginning at the end of such six-year period. MFS does not
intend to apply for listing of the MFS Preferred Stock on any national securities
exchange, on the Nasdaq National Market or in the over-the-counter market. See "The
Spin-off -- Listing and Trading of Spin-off Stock -- MFS Preferred Stock."
</TABLE>
7
<PAGE>
<TABLE>
<S> <C>
Effects of Spin-off on Class D Per Share
Price; Value of Spin-off Stock......... The price at which holders of Class D Stock can sell such stock to PKS after the Spin-off
pursuant to PKS's Certificate of Incorporation (i.e., the Class D Per Share Price), as
described under "Description of Securities -- PKS Stock -Repurchase Duties," is based on
the Class D Formula Value, which is determined at the beginning of each fiscal year of PKS
and is reduced by the amount of any subsequently declared dividend. Accordingly, the Class
D Per Share Price will be significantly reduced as a result of the Spin-off because the
value currently attributable to MFS will no longer be included in the calculation of such
price. The current Class D Per Share Price is $60.25. The Class D Per Share Price after
the Spin-off will depend upon a number of factors, including the number of shares of Class
D Stock issued in the Exchange Offer and PKS's determination of the portion of the Class D
Per Share Price attributable to MFS. The following table sets forth PKS's estimates of (i)
the pro forma Class D Per Share Price after giving effect to the Exchange Offer and the
Spin-Off, (ii) the current market value of the MFS Common Stock to be distributed in the
Spin-off per share of Class D Stock and (iii) the redemption value of the MFS Preferred
Stock to be distributed in the Spin-off per share of Class D Stock, assuming in each case
that (x) all of the Exchangeable Debentures are exchanged for Offered Stock in the
Exchange Offer and (y) the stated number of shares of Exchangeable Stock are exchanged for
Class D Stock in the Exchange Offer:
</TABLE>
<TABLE>
<CAPTION>
ESTIMATED
VALUE
OF MFS COMMON
ESTIMATED STOCK ESTIMATED VALUE
ASSUMED NUMBER PRO FORMA DISTRIBUTED OF MFS PREFERRED
OF SHARES OF CLASS D PER SHARE OF STOCK DISTRIBUTED
EXCHANGEABLE STOCK PER SHARE CLASS D PER SHARE OF
EXCHANGED(1) PRICE(2) STOCK(3) CLASS D STOCK(3)
------------------ --------- -------------- -----------------
<S> <C> <C> <C>
3,000,000 $41.00 $ [ ] $0.66
5,000,000 $41.75 $ [ ] $0.64
<FN>
------------------------------
(1) The 3,000,000 share assumption reflects PKS's estimate of the number
of shares of Exchangeable Stock likely to be tendered in the Exchange
Offer, based upon the tender indications that PKS has received from
members of the PKS Board of Directors and members of the KCG Board of
Directors, and PKS's estimates of the likely number of additional
tenders. The 5,000,000 share assumption is set forth solely to
illustrate the impact of the tender of substantially more shares than
anticipated by PKS. PKS does not believe that a tender of 5,000,000
shares is likely.
(2) Earnings of the Diversified Group for 1995, including earnings
attributable to the settlement of certain litigation described at
"Recent Developments -- Whitney Litigation," would not be reflected
in the Class D Per Share Price until 1996.
(3) For purposes of this table, each share of MFS Common Stock is valued
at $ , its last reported sale price on the Nasdaq National Market
as of , 1995, and each share of MFS Preferred Stock is
valued at its redemption value of $1.00 per share. There is no
assurance as to the market price of the MFS Common Stock at the
Spin-off Date.
</TABLE>
<TABLE>
<S> <C>
See "Risk Factors -- Risk Factors Relating to the Exchange Offer, the Spin-off and PKS
Securities -- Effect of Spin-off on Class D Per Share Price; Value of Spin-off Stock
</TABLE>
8
<PAGE>
<TABLE>
<S> <C>
Dependent on Market." If and when the Class D Stock becomes Publicly Traded, PKS's
obligation to repurchase such stock will cease. See "Risk Factors -- Risk Factors Relating
to the Exchange Offer, the Spin-Off and PKS Securities -- Effect of Class D Stock Becoming
Publicly Traded."
Conditions to the Spin-off; Right to
Abandon, Defer or Modify............... PKS will not consummate the Spin-off unless the MFS Recapitalization has been approved by
the holders of a majority of the MFS Common Stock present in person or by proxy and voting
at the MFS 1995 annual stockholders meeting. Further, the Spin-off will not be consummated
unless the Ruling remains substantially in effect. There are no federal or state
regulatory requirements or approvals that must be complied with or obtained as a condition
of the Spin-off. If the PKS Board determines for any reason that such action would be in
the best interest of PKS and its stockholders, PKS may (i) abandon the Spin-off, (ii)
defer the consummation of the Spin-off or (iii) modify the terms of the Spin-off. The
Spin-off will not necessarily be abandoned in the event the Exchange Offer is abandoned.
However, if the Exchange Offer is consummated, the Spin-off will be consummated promptly
thereafter. See "The Spin-off -- Conditions to the Spin-off; Right of PKS to Abandon,
Defer or Modify the Spin-off."
Certain Tax Considerations.............. Pursuant to the Ruling, for United States federal income tax purposes the holders of the
Class D Stock will not recognize any gain or loss on the distribution of the Spin-off
Stock. In addition, the holders' tax bases in their shares of Class D Stock prior to the
Spin-off will be apportioned in the Spin-off between such stock and the Spin-off Stock,
and the holders' holding periods for the Spin-off Stock generally will include their
holding periods for the Class D Stock. See "The Spin-off -- Certain United States Federal
Income Tax Considerations Relating to the Spin-off."
</TABLE>
PURPOSE OF EXCHANGE OFFER
In connection with the PKS Board's approval of the Exchange Offer and its
preliminary approval of the Spin-off, the PKS Board determined that the Spin-off
would be in the best interest of the stockholders of PKS and would be
advantageous to MFS. The PKS Board authorized the Exchange Offer as an
appropriate means of affording the holders of Class B Stock and Class C Stock an
opportunity to exchange such stock for Class D Stock, and the holders of
Exchangeable Debentures an opportunity to exchange such debentures for Offered
Stock, prior to the proposed Spin-off. See "Overview -- Background and Purpose
of the Spin-off; Purpose of the Exchange Offer; Board Proceedings."
RISK FACTORS
Holders of Exchangeable Securities should carefully consider the factors
discussed under the section entitled "Risk Factors" in this Prospectus before
making a decision to participate in the Exchange Offer. Several of such factors
are also relevant to the assessment by holders of Class D Stock of the
consequences of the Spin-Off.
9
<PAGE>
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA OF
PETER KIEWIT SONS', INC.
<TABLE>
<CAPTION>
PRO FORMA (1)
HISTORICAL -----------------------------------------
------------------------------ THREE MONTHS
THREE MONTHS FISCAL YEAR ENDED ENDED MARCH 31,
FISCAL YEAR ENDED MARCH DECEMBER 31, 1994 1995
ENDED 31, ------------------- -------------------
-------------- -------------- SCENARIO SCENARIO SCENARIO SCENARIO
1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
------ ------ ------ ------ -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATION:
Revenue (3)..................................... $2,191 $2,991 $ 573 $ 681 $2,704 $2,704 $ 563 $ 563
Net earnings (loss) (4)......................... 261 110 23 (26) 177 177 14 14
FINANCIAL POSITION:
Total Assets (3)................................ 3,634 4,504 4,449 2,894 2,894
Current portion of long-term debt (3)........... 15 33 33 13 13
Long-term debt, less current portion (3)........ 462 908 929 366 366
Stockholders' equity (5)........................ 1,671 1,736 1,720 1,325 1,325
<FN>
------------------------------
(1) The pro forma results of operation data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1, 1995 for the fiscal year ended December
31, 1994 and three months ended March 31, 1995, respectively. The pro forma
financial position data as of March 31, 1995 assumes that such transactions
were consummated as of such date. The pro forma financial data of PKS
should be read in conjunction with PKS' historical consolidated financial
statements and the notes thereto and the "Pro Forma Financial Information"
included elsewhere or incorporated by reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer. Scenario 1 reflects PKS's estimate of the number of shares
of Exchangeable Stock likely to be tendered in the Exchange Offer, based
upon the tender indications that PKS has received from members of the PKS
Board of Directors and members of the KCG Board of Directors, and PKS's
estimates of the likely number of additional tenders. Scenario 2 is set
forth solely to illustrate the impact of the tender of substantially more
shares than anticipated by PKS. PKS does not believe that a tender of
5,000,000 shares is likely.
(3) In October 1993, PKS acquired 35% of the outstanding shares of C-TEC
Corporation that have 57% of the available voting rights. In December 1994,
PKS increased its ownership in C-TEC to 49% and 58% of the outstanding
shares and voting rights, respectively. In January 1994, MFS, a subsidiary
of PKS, issued $500 million of 9.375% Senior Discount Notes.
(4) In 1993, through two public offerings, PKS sold 29% of the common stock of
MFS, resulting in a $137 million after-tax gain. In 1994, additional MFS
stock transactions resulted in a $35 million after-tax gain to PKS and
reduced its ownership in MFS to 67%.
(5) The aggregate redemption value of common stock at March 31, 1995 was $1.6
billion.
</TABLE>
See "Selected Historical and Pro Forma Financial Data of Peter Kiewit Sons',
Inc." for further information.
10
<PAGE>
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA OF
KIEWIT CONSTRUCTION & MINING GROUP
<TABLE>
<CAPTION>
HISTORICAL PRO FORMA (1)
------------------------------------------ --------------------------------------------------
THREE MONTHS ENDED
THREE MONTHS FISCAL YEAR ENDED
FISCAL YEAR ENDED ENDED MARCH 31, DECEMBER 31, 1994 MARCH 31, 1995
------------------------ ------------------------
-------------------- -------------------- SCENARIO SCENARIO SCENARIO SCENARIO
1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
--------- --------- --------- --------- ----------- ----------- ----------- -----------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS:
Revenue........................... $ 1,783 $ 2,175 $ 411 $ 426 $ 2,175 $ 2,175 $ 426 $ 426
Net earnings (loss)............... 80 77 (2) (2) 75 74 (3) (3)
Per Common Share
Net earnings (loss) (3)........... 4.63 4.92 (0.14) (0.16) 5.88 6.84 (0.26) (0.37)
Dividends (4)..................... 0.70 0.90 -- -- -- -- -- --
Stock price (5)................... 22.35 25.55 22.35 25.55 25.45 25.45
Book value........................ 27.43 31.39 27.72 32.25 33.97 35.86
FINANCIAL POSITION:
Total assets...................... 889 967 896 819 768
Current portion of long-term
debt............................. 4 3 2 2 2
Long-term debt, less current
portion.......................... 10 9 7 6 6
Stockholders' equity (6).......... 480 505 448 372 321
Formula Value (5)................. 391 411
<FN>
------------------------------
(1) The pro forma results of operations data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1, 1995 for the fiscal year ended December
31, 1994 and three months ended March 31, 1995, respectively. The pro forma
financial position data as of March 31, 1995 assumes that such transactions
were consummated as of such date. The pro forma financial data of Kiewit
Construction & Mining Group should be read in conjunction with the Kiewit
Construction & Mining Group's historical financial statements and the notes
thereto and the "Pro Forma Financial Information" included elsewhere or
incorporated by reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer. Scenario 1 reflects PKS's estimate of the number of shares
of Exchangeable Stock likely to be tendered in the Exchange Offer, based
upon the tender indications that PKS has received from members of the PKS
Board of Directors and members of the KCG Board of Directors, and PKS's
estimates of the likely number of additional tenders. Scenario 2 is set
forth solely to illustrate the impact of the tender of substantially more
shares than anticipated by PKS. PKS does not believe that a tender of
5,000,000 shares is likely.
(3) Fully diluted earnings per share have not been presented because it is not
materially different from primary earnings per share.
(4) The 1994 and 1993 dividends include $.45 and $.40 for dividends declared in
1994 and 1993, respectively, but paid in January of the subsequent year.
(5) Pursuant to the Certificate of Incorporation, the stock price and formula
value calculations are computed annually at the end of the fiscal year,
except that adjustments to the stock price to reflect dividends are made at
the time such dividends are declared.
(6) Ownership of the Class B Stock and Class C Stock is restricted to certain
employees conditioned upon the execution of repurchase agreements which
restrict the employees from transferring the stock. PKS is generally
committed to purchase all Class B Stock and Class C Stock at the amount
computed, when put to PKS by a stockholder, pursuant to the Certificate of
Incorporation. The aggregate redemption value of the B&C Stock at March 31,
1995 was $355 million.
</TABLE>
See "Selected Historical and Pro Forma Financial Data of Kiewit Construction &
Mining Group" for further information.
11
<PAGE>
SUMMARY HISTORICAL AND PRO FORMA FINANCIAL DATA OF
KIEWIT DIVERSIFIED GROUP
<TABLE>
<CAPTION>
PRO FORMA (1)
HISTORICAL -----------------------------------------
------------------------------ THREE MONTHS ENDED
FISCAL YEAR ENDED
FISCAL YEAR THREE MONTHS DECEMBER 31, 1994 MARCH 31, 1995
ENDED ENDED MARCH 31 ------------------- -------------------
-------------- -------------- SCENARIO SCENARIO SCENARIO SCENARIO
1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
------ ------ ------ ------ -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS:
Revenue (3)..................................... $ 408 $ 821 $ 162 $ 257 $ 534 $ 534 $ 139 $ 139
Net earnings (loss) (4)......................... 181 33 25 (24) 102 103 17 17
Per Common Share
Net earnings (loss) (5)......................... 9.08 1.63 1.21 (1.14) 4.73 4.63 0.75 0.74
Dividends....................................... 0.50 -- -- -- -- -- -- --
Stock price (6)................................. 59.40 60.25 59.40 60.25 42.20 42.85
Book value...................................... 59.52 60.36 60.17 59.85 43.18 42.83
FINANCIAL POSITION:
Total assets (3)................................ 2,759 3,549 3,575 2,097 2,148
Current portion of long-term debt (3)........... 11 30 31 11 11
Long-term debt, less current portion (3)........ 452 899 922 360 360
Stockholders' equity (7)........................ 1,191 1,231 1,272 953 1,004
Formula Value (6)............................... 1,191 1,231
<FN>
------------------------------
(1) The pro forma results of operations data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1, 1995 for the fiscal year ended December
31, 1994 and the three months ended March 31, 1995, respectively. The pro
forma financial position data as of March 31, 1995 assumes that such
transactions were consummated as of such date. The pro forma financial data
of Kiewit Diversified Group should be read in conjunction with the Kiewit
Diversified Group's historical financial statements and the notes thereto
and the "Pro Forma Financial Information" included elsewhere or
incorporated by reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer. Scenario 1 reflects PKS's estimate of the number of shares
of Exchangeable Stock likely to be tendered in the Exchange Offer, based
upon the tender indications that PKS has received from members of the PKS
Board of Directors and members of the KCG Board of Directors, and PKS's
estimates of the likely number of additional tenders. Scenario 2 is set
forth solely to illustrate the impact of the tender of substantially more
shares than anticipated by PKS. PKS does not believe that a tender of
5,000,000 shares is likely.
(3) In October 1993, the Group acquired 35% of the outstanding shares of C-TEC
Corporation that have 57% of the available voting rights. In December 1994,
the Group increased its ownership in C-TEC to 49% and 58% of the
outstanding shares and voting rights, respectively. In January 1994, MFS
issued $500 million of 9.375% Senior Discount Notes.
(4) In 1993, through two public offerings, the Group sold 29% of the common
stock of MFS, resulting in a $137 million after-tax gain. In 1994,
additional MFS stock transactions resulted in a $35 million after-tax gain
to the Group and reduced its ownership in MFS to 67%.
(5) Fully diluted earnings per share have not been presented because it is not
materially different from primary earnings per share.
(6) Pursuant to the Certificate of Incorporation, the stock price and formula
value calculations are computed annually at the end of the fiscal year,
except that adjustments to the stock price to reflect dividends are made at
the time such dividends are declared.
(7) Unless Class D Stock becomes Publicly Traded, PKS is generally committed to
purchase all Class D Stock at the amount determined, in accordance with the
Certificate of Incorporation, when put to PKS by a stockholder. The
aggregate redemption value of the Class D Stock at March 31, 1995 was $1.28
billion.
</TABLE>
See "Selected Historical and Pro Forma Financial Data of Kiewit Diversified
Group" for further information.
12
<PAGE>
SUMMARY CONSOLIDATED FINANCIAL DATA
OF MFS COMMUNICATIONS COMPANY, INC.
The development and acquisition by MFS of its networks and services during
the periods reflected below materially affect the comparability of that data
from one period to another. The following selected consolidated financial data
should be read in conjunction with the Consolidated Financial Statements of MFS
and the notes thereto, incorporated by reference herein. No cash dividends were
paid in any of the periods presented below.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED THREE MONTHS
------------------------------------- ENDED
1992 1993 1994 (1) MARCH 31, 1995
----------- ----------- ----------- --------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue:
Telecommunications services......................................... $ 47,585 $ 70,048 $ 228,707 $103,788
Network systems integration......................................... 61,122 71,063 58,040 14,552
----------- ----------- ----------- --------------
Total............................................................. 108,707 141,111 286,747 118,340
Costs and expenses:
Operating expenses.................................................. 76,667 102,905 273,431 119,882
Depreciation and amortization....................................... 20,544 34,670 73,869 29,073
General and administrative expenses................................. 23,267 34,989 75,576 25,941
----------- ----------- ----------- --------------
Total............................................................. 120,478 172,564 422,876 174,896
----------- ----------- ----------- --------------
Loss from operations.................................................. (11,771) (31,453) (136,129) (56,556)
Other income (expense) net............................................ (792) 8,464 (17,175) (7,252)
----------- ----------- ----------- --------------
Loss before income taxes.............................................. (12,563) (22,989) (153,304) (63,808)
Income tax benefit (expense).......................................... (566) 7,220 2,103 (100)
----------- ----------- ----------- --------------
Net loss............................................................ $(13,129) $(15,769) $(151,201) $ (63,908)
----------- ----------- ----------- --------------
----------- ----------- ----------- --------------
Loss per share (2) ................................................... $(0.30) $(0.30) $(2.42) $(0.99)
----------- ----------- ----------- --------------
----------- ----------- ----------- --------------
Number of shares (2).................................................. 44,085,000 52,882,000 62,437,000 64,365,000
----------- ----------- ----------- --------------
----------- ----------- ----------- --------------
Ratio of earnings to combined fixed charges and preferred stock
dividends (3)........................................................ -- -- -- --
OTHER DATA:
EBITDA (4).......................................................... $ 8,773 $ 3,217 $ (62,260) $ (27,483)
Net cash provided by (used in) operating activities................. 28,741 32,946 (10,422) (21,255)
Capital expenditures, including acquisitions of businesses, net of
cash acquired...................................................... 110,171 128,651 576,711 106,665
STATISTICAL DATA (5):
Circuits in service (6)............................................. 589,130 947,391 1,713,430 1,964,872
Buildings connected................................................. 1,101 1,583 2,754 3,284
Route miles (7)..................................................... 858 1,298 2,405 2,616
Fiber miles (8)..................................................... 38,595 62,154 107,919 122,074
Switches............................................................ -- 1 12 12
BALANCE SHEET DATA:
Networks and equipment.............................................. $243,243 $370,334 $ 787,453 $ 897,920
Total assets........................................................ 363,299 906,937 1,584,546 1,554,945
Long-term debt, less current portion................................ 169 143 548,333 560,688
Stockholders' equity................................................ 298,516 811,105 770,103 719,610
<FN>
------------------------------
(1) Reflects the acquisition of Centex Telemanagement, Inc. as of May 18, 1994,
Cylix Communications Corporation as of November 1, 1994 and RealCom Office
Communications, Inc. as of November 14, 1994.
(2) See Note 2 to the Consolidated Financial Statements, which describes the
calculation of loss per share.
(3) For each of the three years ended December 31, 1994 and for the three
months ended March 31, 1995, earnings were insufficient to cover fixed
charges during the periods shown by the amount of loss before income taxes
of $12,563,000, $22,989,000, $153,304,000 and $63,808,000, respectively.
(4) EBITDA consists of earnings (loss) before interest, income taxes,
depreciation and amortization. EBITDA is commonly used in the
communications industry to analyze companies on the basis of operating
performance, leverage and liquidity. EBITDA is not intended to represent
operating results or cash flows as determined by generally accepted
accounting principles. See Consolidated Statements of Cash Flows.
(5) Information presented as of the end of the period indicated and derived
from non-financial records prepared by MFS which are not audited.
(6) All circuits have been expressed as voice grade equivalent circuits.
(7) Route miles refers to the number of miles of the telecommunications path in
which the fiber optic cables are installed.
(8) Fiber miles refers to the number of route miles installed (excluding
pending installations) along a telecommunications path multiplied by the
number of fibers along that path.
</TABLE>
13
<PAGE>
RISK FACTORS
Participation in the Exchange Offer by a holder of Exchangeable Securities
is voluntary. Before tendering Exchangeable Securities for Offered Stock, a
holder of Exchangeable Securities should carefully consider the risks and
benefits of participation in the Exchange Offer, including consideration of the
consequences of a decision not to participate in the Exchange Offer, an
assessment of the investment characteristics of the Exchangeable Securities held
by such holder, on the one hand, and the Offered Stock and the Spin-off Stock,
on the other, and consideration of the other information contained or
incorporated by reference in this Prospectus. Several of such factors are also
relevant to the assessment by holders of Class D Stock of the consequences of
the Spin-off.
RISK FACTORS RELATING TO THE EXCHANGE OFFER,
THE SPIN-OFF AND PKS SECURITIES
CERTAIN CONSEQUENCES OF DECISION NOT TO EXCHANGE
If the Spin-off occurs, each holder of record of shares of Class D Stock as
of the Spin-off Date would retain such stock and would receive in addition MFS
Common Stock and MFS Preferred Stock. PKS expects that, at the time of the
Spin-off, the market price of the MFS Common Stock distributed in respect of
each share of Class D Stock will be substantially in excess of the value then
attributable to MFS in the determination of the Class D Per Share Price in
accordance with the PKS Certificate of Incorporation. For example, assuming in
two alternative scenarios that (i) 3,000,000 shares and (ii) 5,000,000 shares of
Exchangeable Stock, and in each case all of the Exchangeable Debentures, are
exchanged in the Exchange Offer, the market price of the estimated number of
shares of MFS Common Stock to be distributed per share of Class D Stock (based
on the last reported sale price of the MFS Common Stock on the Nasdaq National
Market as of ____________, 1995) would be $____ and $____, respectively,
compared to the respective estimated values of approximately $19.25 and $18.50
that would be attributable to MFS under such scenarios for purposes of
determining the Class D Per Share Price. See the table at "Overview -- The
Spin-off." Accordingly, although there is no assurance as to the market price of
the MFS Common Stock at the Spin-off Date, the sum of (i) the market value of
the MFS Common Stock distributed to a holder of Class D Stock plus (ii) the
redemption value of the MFS Preferred Stock distributed to a holder of Class D
Stock plus (iii) the aggregate Class D Per Share Price of such holder's shares
of Class D Stock after giving effect to the Spin-off is expected to be
substantially in excess of the aggregate Class D Per Share Price of such
holder's shares of Class D Stock before giving effect to the Spin-off. See
"Overview -- The Spin-Off." This represents a one-time benefit that holders of
Exchangeable Stock who participate in the Exchange Offer will receive in respect
of the Class D Stock issued to them in the Exchange Offer. Holders of
Exchangeable Stock who do not exchange such stock pursuant to the Exchange Offer
will not receive this anticipated benefit with respect to Exchangeable Stock
held by them.
A holder of Exchangeable Debentures who participates in the Exchange Offer
would receive on the exchange of such Exchangeable Debentures the same number
and classes of PKS stock that the holder would later be entitled to receive upon
conversion of such Exchangeable Debentures in accordance with their stated
conversion terms. A holder of Exchangeable Debentures who does not participate
in the Exchange Offer would not have an opportunity to receive such PKS stock
until the scheduled conversion period provided for in the holder's Exchangeable
Debentures. Further, PKS will not retain any MFS Common Stock or MFS Preferred
Stock after the Spin-off, and therefore would not be able to distribute any MFS
Common Stock or MFS Preferred Stock upon a subsequent conversion of such
Exchangeable Debentures during their scheduled conversion period. The PKS Board
of Directors has not made any provision for any other adjustment to the
Exchangeable Debentures to reflect the Spin-off. In addition, the formula value
of the stock receivable in exchange for each Exchangeable Debenture will be
substantially greater than the face amount of the Exchangeable
14
<PAGE>
Debenture, which a holder would not otherwise receive until the tenth
anniversary of the date of the issuance of such Exchangeable Debenture.
Accordingly, tender of Exchangeable Debentures in the Exchange Offer will most
likely result in receipt of the greatest value by the debentureholder.
CERTAIN INVESTMENT CHARACTERISTICS OF EXCHANGEABLE STOCK AND CLASS D STOCK
EXCHANGEABLE STOCK. Among the investment characteristics of the Class B
Stock and the Class C Stock that should be considered are the holder's
assessment of (i) the potential for continued dividend income from such stock,
and the potential for continued growth and the risk of a decline in the Class
B&C Per Share Price of such stock, all of which are dependent on the business
prospects for the Construction & Mining Group and (ii) the terms of the Class B
Stock and Class C Stock summarized below in this "Risk Factors" section and more
fully described under "Description of Securities -- PKS Stock."
CLASS D STOCK. Among the investment characteristics of the Class D Stock
that should be considered are (i) the limited history of dividends on such
stock, (ii) the potential for future dividends on the Class D Stock, which is
dependent on the business prospects for the Diversified Group, and the fact that
the PKS Board of Directors announced in August 1993 that, in light of heavy
capital commitments, PKS did not intend to pay dividends on the Class D Stock in
the foreseeable future, (iii) the potential for growth and the risk of decline
in the Class D Per Share Price of such stock, which are dependent on the
business prospects for the Diversified Group, (iv) the possibility that the
annual changes in the Class D Formula Value, on which the Class D Per Share
Price is based, may be less readily predictable than the annual changes in the
Class B&C Formula Value, on which the Class B&C Per Share Price is based, in
view of the diverse and generally less mature businesses that comprise the
Diversified Group as compared to the Construction & Mining Group and (v) the
terms of the Class D Stock summarized below in this "Risk Factors" section and
more fully described under "Description of Securities -- PKS Stock." In
addition, holders of Exchangeable Stock should consider the anticipated risks
and benefits of the Spin-off for the holders of the Class D Stock in the context
of all the other factors discussed in this "Risk Factors" section, including all
of the special considerations associated with ownership of MFS securities
discussed below under "Risk Factors Relating to MFS."
SUMMARY OF TERMS OF PKS STOCK.__The following table sets forth a comparative
summary of the basic terms of the Class B Stock and Class C Stock, on the one
hand, and the Class D Stock, on the other. As this summary is necessarily
incomplete, reference is made to, and this summary is qualified in its entirety
by, the more detailed information included under "Description of Securities --
PKS Stock."
<TABLE>
<CAPTION>
CLASS B STOCK AND CLASS C STOCK CLASS D STOCK
----------------------------------------- -----------------------------------------
<S> <C> <C>
Businesses with which Class Construction and mine management Diversified businesses: data management,
is Associated telecommunications, energy production,
coal mining.
Voting Rights Class B Stock: Nonvoting. One vote per share.
Class C Stock: One vote per share.
-Board of Directors 2/3 of directors elected by Class C 1/3 of directors elected by Class D
Stock. 4/5 of Class C directors must be Stock. No cumulative voting.
"inside" directors. Elected by cumulative
voting.
- Supermajority 80% of Class C Stock plus majority of Majority of voting stock (which includes
Requirements voting stock (Class C Stock and Class D Class D Stock) must approve fundamental
Stock combined) required to approve corporate changes and certain other
fundamental corporate changes. actions. Separate class vote required in
66 2/3% of Class C Stock plus majority of certain circumstances.
voting stock required to approve certain
other actions.
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
CLASS B STOCK AND CLASS C STOCK CLASS D STOCK
----------------------------------------- -----------------------------------------
-Equalizing Stock Dividends If fewer shares of Class C Stock are
outstanding as compared to Class D Stock,
PKS Board can declare stock dividends on
Class C Stock, thereby increasing number
of aggregate Class C Stock votes, without
corresponding stock dividends on Class D
Stock.
<S> <C> <C>
Stock Price Class B&C Per Share Price is based on Class D Per Share Price is based on Class
Class B&C Formula Value, which is PKS's D Formula Value, which is the
consolidated stockholders' equity, less stockholders' equity of Diversified
the value of construction equipment, and Group, plus one-half of the
less the Class D Formula Value. unconsolidated stockholders' equity of
PKS itself and any non-operating
subsidiaries.
Dividends Dividends payable out of amount legally Dividends payable out of Available Class
available less Available Class D Dividend D Dividend Amount, which is a function of
Amount. Current policy is to pay 15-20% Class D Formula Value (but dividends
of earnings as cash dividends. cannot in any event exceed amount legally
available for dividends). Current policy
is not to pay cash dividends.
Liquidation In the event of liquidation, the PKS Board will establish two accounts from the
assets remaining for distribution to the PKS common stockholders. The D Liquidation
Account will be in an amount equal to the value of the Diversified Group's assets,
plus an amount equal to one-half of the unconsolidated stockholders' equity of PKS
itself and any non-operating subsidiaries. The B&C Liquidation Account will be the
value of the remaining assets. First, to the extent funds are available after
payment of creditors, holders of Class B Stock and Class C Stock will receive an
amount equal to $1.00 per share, reducing the B&C Liquidation Account. Second, to
the extent of remaining available funds, holders of Class D Stock will receive an
amount equal to $2.00 per share, reducing the D Liquidation Account. Finally, any
assets remaining in the B&C Liquidation Account will be distributed to the holders
of Class B Stock and Class C Stock and any assets remaining in the D Liquidation
Account will be distributed to the holders of Class D Stock.
Mandatory Exchanges PKS Board can require exchange of Class B PKS Board can require exchange of Class D
Stock and Class C Stock for shares of a Stock for shares of a wholly-owned
wholly-owned subsidiary that holds all subsidiary that holds all the assets and
the assets and liabilities of the liabilities of the Diversified Group.
Construction & Mining Group. PKS Board can require an exchange of all
Class D Stock for Class C Stock, unless
Class D Stock is Publicly Traded. If
holders of Class D Stock are not eligible
to own Class C Stock, the Company must
repurchase such Class D Stock for cash.
Ownership and Transfer Ownership by employees only (with limited No restrictions on ownership and
Restrictions exceptions). Stock must be resold to PKS transfer.
upon death or termination of employment,
except that stock of employees retiring
at year end may be converted into Class D
Stock. Sales by or to PKS only. No more
than 10% of the Class C Stock may be
owned by any one holder and related
persons.
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
CLASS B STOCK AND CLASS C STOCK CLASS D STOCK
----------------------------------------- -----------------------------------------
Repurchase Obligations PKS must repurchase stock upon demand at PKS must repurchase upon demand at Class
Class B&C Per Share Price. D Per Share Price, unless and until Class
PKS Board can suspend obligation to D Stock is Publicly Traded.
repurchase for period up to one year. PKS Board can suspend obligation to
repurchase for period of up to one year.
After PKS has repurchased 10% of
outstanding Class D Stock in any one
year, PKS Board can limit cash repurchase
obligations by offering payment in form
of two-year promissory note, regardless
of financial condition of PKS.
<S> <C> <C>
Redemption Class B Stock: At PKS Board discretion, No provisions.
redeemable at Class B&C Per Share Price.
Class C Stock: PKS Board can require
resale of "excessive amounts" of stock,
based on level of employee's
contribution, effort and responsibility.
Conversion Rights Holders can convert Class B Stock and Until Class D Stock is Publicly Traded,
Class C Stock to Class D Stock by notice holder can convert Class D Stock into
given from October 15 to December 15 in Class C Stock in connection with an
any year, effective the following January offering of Class C Stock to such holder
1. (conversion limited to value of new Class
Conversion right suspended during C Stock offered).
pendency of suspension of repurchase Conversion right suspended during
obligation as described above. Conversion pendency of suspension of repurchase
right also subject to PKS's right to obligation as described above.
purchase for cash the shares tendered for
conversion.
</TABLE>
VOTING RIGHTS. The provisions regarding voting rights summarized in the
above table give the Class C Stock a significant degree of influence over PKS's
decision-making processes, despite the fact that, on the date hereof and for the
foreseeable future, even after giving effect to the Spin-off, the Diversified
Group will represent a larger portion of PKS's assets and net worth than will
the Construction & Mining Group. The PKS Board has no present intention to
declare a stock dividend on the Class C Stock so as to increase the number of
votes attributable to the Class C Stock, notwithstanding that the number of
outstanding shares of Class D Stock currently exceeds the number of outstanding
shares of Class C Stock, and that such disparity would increase after giving
effect to the Exchange Offer. See "Description of Securities -- PKS Stock --
Voting" and "-- The PKS Board of Directors."
DIVIDENDS. Under current Delaware law, the amount legally available for the
payment of dividends is calculated by reference to the surplus or, under certain
circumstances, the profits of the Company. Thus, dividends on any class of PKS
stock may be precluded because of the unavailability of funds for such purpose
under Delaware law, regardless of the surplus or net profits of the Construction
& Mining Group and the Diversified Group, respectively. See "Description of
Securities -- PKS Stock -- Dividends." In addition, because the amount available
for dividends on each class of common stock is dependent upon, in part, the
Class D Formula Value, which in turn is dependent upon certain allocations,
inter-company transactions and dividends which are subject to the approval of
the PKS Board of Directors, the holders of the different classes of PKS's stock
are dependent upon the PKS Board of Directors to resolve any potential conflicts
arising from such allocations, inter-company transactions and dividends. See "--
Potential Conflicts; Fiduciary Duties of the PKS Board," below.
MANDATORY EXCHANGE. The tax consequences of a mandatory exchange of Class B
Stock and Class C Stock or Class D Stock for the stock of a subsidiary of PKS,
as summarized in the above table,
17
<PAGE>
cannot be determined until the time of such exchange. However, the PKS Board of
Directors will review the tax implications of such an exchange when considering
whether to require such an exchange. See "Description of Securities -- PKS Stock
-- Mandatory Exchanges."
SUSPENSION OF REPURCHASE OBLIGATIONS.__If PKS's repurchase obligation with
respect to Class B Stock and Class C Stock is suspended, repurchases by PKS of
Class B Stock and Class C Stock otherwise than upon voluntary tender by the
holder will continue, but the Company's obligation to pay for such repurchases
is deferred until after the end of the suspension period. If the suspension
period ends during the second half of a fiscal year, the repurchase price will
be the formula price per share determined as of the end of that fiscal year, but
if the suspension period ends in the first half of a fiscal year, the repurchase
price will be based on the formula price per share determined as of the end of
the prior fiscal year. As a result of these provisions, a holder of Class B
Stock and Class C Stock or Class D Stock may not be able to dispose of his or
her investment for cash for a period of up to one year.
LIQUIDATION OR REORGANIZATION.__Neither of the liquidation preferences
referred to in the above table is secured by any sinking fund and neither will
restrict PKS's ability to pay dividends. The distribution of any amounts
remaining after payment of such preference amounts on the Class B Stock and the
Class C Stock and the Class D Stock will depend upon the relative values of the
assets of the Construction & Mining Group and the Diversified Group. These
values will be determined at the time of liquidation. See "Description of
Securities -- PKS Stock -- Liquidation." The value of the assets of each Group
will be affected by certain allocations, inter-company transactions and
dividends, which are subject to the approval of the PKS Board of Directors. As a
result, in the event of a liquidation the amounts received by the holders of the
different classes of PKS's stock may be dependent upon how the PKS Board of
Directors resolved any potential conflicts arising from such matters prior to
the liquidation. See "-- Potential Conflicts; Fiduciary Duties of the PKS
Board," below.
In the event that PKS were to enter into liquidation or reorganization
proceedings under the United States bankruptcy laws, the Company's creditors
would rank senior to the holders of any class of PKS's stock. A stockholder who
had tendered his or her shares for repurchase by PKS prior to the commencement
of such proceedings (including a stockholder who tendered during a suspension
period described under "Suspension of Repurchase Obligations" above) might
conceivably be treated as a creditor of PKS rather than as a stockholder as to
the tendered shares. However, even if such a stockholder were treated as a
creditor, it is likely that he or she would be given a lower priority than other
creditors of PKS for the purposes of any distribution.
CERTAIN INVESTMENT CHARACTERISTICS OF THE EXCHANGEABLE DEBENTURES.
The Exchangeable Debentures are unsecured, interest-bearing debt obligations
of PKS, maturing ten years after their respective issue dates. During the month
of October in the fifth year after their respective issue dates, the
Exchangeable Debentures are convertible into PKS stock at a fixed conversion
price equal to the related per share formula price on the date of issuance of
the Exchangeable Debenture. Each Class C and D Debenture is convertible into
shares of Class C Stock and Class D Stock, and each Class D Debenture is
convertible into shares of Class D Stock.
The Exchangeable Debentures may not be transferred except by sale to PKS.
The holder may require PKS to repurchase the Exchangeable Debentures at any
time, and must sell the Exchangeable Debentures to PKS on death, retirement or
termination of employment by PKS. PKS may also redeem the Exchangeable
Debentures at its option, except during the applicable one-month conversion
period. All repurchases or redemptions of Exchangeable Debentures by PKS are at
a price equal to the principal amount thereof plus accrued and unpaid interest.
See "Description of Securities -- PKS Convertible Debentures."
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CERTAIN INVESTMENT CHARACTERISTICS OF SPIN-OFF STOCK.
Set forth below is a brief summary of the terms of the MFS Common Stock and
the MFS Preferred Stock. Certain risk factors associated with the ownership of
MFS Common Stock and MFS Preferred Stock are discussed under "Risk Factors
Relating to MFS," below.
MFS COMMON STOCK.
Holders of MFS Common Stock are entitled to one vote per share on all
matters submitted to a vote of MFS stockholders and do not have cumulative
voting rights. Holders of MFS Common Stock are entitled to receive ratably such
dividends, if any, as may be declared by the MFS Board of Directors. The MFS
Common Stock is currently traded on the Nasdaq National Market. See "Description
of Securities -- MFS Common Stock."
MFS PREFERRED STOCK.
Holders of MFS Preferred Stock are entitled to five votes per share on all
matters presented to the MFS stockholders. KDG has agreed to grant to the
Secretary and Assistant Secretary of MFS an irrevocable proxy to vote all of the
shares of MFS Preferred Stock in proportion to the vote of the holders of MFS
Common Stock on all matters other than the election of MFS directors and matters
as to which holders of the MFS Preferred Stock vote as a separate class under
Delaware corporation law. The shares of MFS Preferred Stock distributed in the
Spin-off will be subject to this irrevocable proxy. The MFS Preferred Stock is
convertible into MFS Common Stock at any time after the first anniversary of the
date of its issuance at an effective conversion rate of 0.0231884 shares of MFS
Common Stock per share of MFS Preferred Stock and is redeemable at the option of
MFS at any time after the sixth anniversary of its issuance at a redemption
price of $1.00 per share. Dividends on the MFS Preferred Stock will accrue
annually and be payable in cash, but only when, as and if declared by the MFS
Board of Directors. The MFS Preferred Stock contains extensive restrictions on
transfer. See "Description of Securities -- MFS Preferred Stock."
COMPANY POLICY ON FUTURE SALES OF CLASS C STOCK
PKS offers Class C Stock for sale to employees annually. The PKS Board and
management select the employees to whom Class C Stock is to be offered and
determine the number of shares to be offered to each such employee. In selecting
employees and determining the number of shares of Class C Stock to be offered,
the PKS Board and management consider a wide range of factors, including the
employee's effort and relative contribution to PKS's economic performance; the
employee's level of responsibility; the potential displayed by the employee; the
employee's length of service; and the amount of Class C Stock presently owned by
the employee.
Under, and subject to the provisions of, the PKS Certificate of
Incorporation, each holder of Class C Stock has the right to sell Class C Stock
back to PKS at any time during the first fifteen days of each calendar month,
and the right to convert Class C Stock into Class D Stock exercisable during a
two-month period from and including October 15 through and including December 15
of each year. If an employee sells Class C Stock back to PKS or converts Class C
Stock into Class D Stock during any year, the PKS Board and management generally
consider such stock sales and conversions, in addition to the factors described
above, in determining whether to offer Class C Stock to the employee in the
following year, and if Class C Stock is offered to such employee, the amount of
Class C Stock so offered. Although the sale or conversion of Class C Stock is
not the only factor taken into account in those cases, PKS generally has
declined to sell Class C Stock to an employee in the year following a year in
which the employee has sold Class C Stock or converted Class C Stock into Class
D Stock.
The PKS Board and management expect to use similar criteria in determining
the employees to whom Class C Stock is offered, and the number of shares of
Class C Stock offered to each such employee, in 1996. Accordingly, PKS expects
that the PKS Board and management generally will not offer Class C Stock for
sale in 1996 to a holder of Class C Stock who has exchanged Class C Stock for
Class D Stock pursuant to the Exchange Offer.
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NO INTENTION TO REPLACE EXCHANGED CLASS B STOCK OR CLASS C STOCK THROUGH FUTURE
OFFERINGS
PKS will not change the criteria by which it offers Class C Stock under
PKS's stock ownership program for the purpose of enabling persons who tender
Exchangeable Stock in the Exchange Offer to restore the level of their holdings
of such stock through future purchases.
POSSIBLE LIMIT ON AMOUNT OF EXCHANGEABLE STOCK TO BE ACCEPTED IN EXCHANGE OFFER
The PKS Board of Directors has not considered it necessary to impose a limit
on the amount of Exchangeable Stock that may be exchanged in the Exchange Offer.
However, the PKS Board of Directors has reserved the right to do so at any time
prior to the Expiration Date in the event it determines that acceptance of all
tendered Exchangeable Stock would not be in the best interest of PKS and its
stockholders. In the event the PKS Board of Directors were to take such action,
it would impose such a limit on the tendered Exchangeable Stock (but not on the
tendered Exchangeable Debentures) on a pro rata basis and would follow the
procedures applicable to a modification of the Exchange Offer. See "The Exchange
Offer -- Right of PKS to Extend, Abandon or Modify the Exchange Offer or Defer
Acceptance of Tendered Exchangeable Securities." The PKS Board of Directors does
not presently intend to impose a limit on the amount of Exchangeable Debentures
that may be exchanged in the Exchange Offer.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE EXCHANGE
OFFER
If the exchange of Offered Stock for Exchangeable Stock in the Exchange
Offer constitutes, for United States federal income tax purposes, a
"recapitalization" within the meaning of Section 368(a)(1)(E) of the Internal
Revenue Code of 1986, as amended (the "Code"), then, among other things, no gain
or loss will be recognized by a holder of Exchangeable Stock who elects to
participate in the Exchange Offer upon the exchange of Offered Stock for
Exchangeable Stock. PKS has been advised by Sutherland, Asbill & Brennan, its
regular outside tax counsel, that, although the issue is not free from doubt, in
the opinion of such counsel, the exchange of Offered Stock for Exchangeable
Stock in the Exchange Offer should constitute, for United States federal income
tax purposes, a recapitalization within the meaning of section 368(a)(1)(E) of
the Code. Accordingly, there is an element of uncertainty regarding the federal
income tax consequences of such exchange. See "The Exchange Offer -- Certain
United States Federal Income Tax Considerations Relating to the Exchange Offer."
TRANSFER FROM CONSTRUCTION & MINING GROUP
Whenever Class B Stock or Class C Stock is converted into Class D Stock, it
has been PKS's practice (although the terms of the PKS Certificate of
Incorporation do not require that it do so) to transfer funds from the
Construction & Mining Group to the Diversified Group, in an amount equal to the
aggregate Class B&C Per Share Price of the Class B Stock and Class C Stock so
converted, in order that the conversion will not have the effect of diluting the
Class D Formula Value. PKS will take the same action with respect to
Exchangeable Stock exchanged for Class D Stock in the Exchange Offer. Thus, the
more Exchangeable Stock that is exchanged, the greater the funds that will be
transferred from the Construction & Mining Group to the Diversified Group. For
example, if 3,000,000 shares of Class B Stock and Class C Stock were exchanged
for Class D Stock pursuant to the Exchange Offer, PKS would transfer $75,300,000
from the Construction & Mining Group to the Diversified Group; if 5,000,000
shares of Class B Stock and Class C Stock were exchanged for Class D Stock
pursuant to the Exchange Offer, PKS would transfer $125,500,000 from the
Construction & Mining Group to the Diversified Group. Such transfer may have a
negative impact on the liquidity of the Construction & Mining Group. PKS expects
that the Construction & Mining Group will have sufficient funds, either from
cash on hand or cash flow from operations, to make any such transfer. If,
however, more shares of Class B Stock and Class C Stock were tendered for Class
D Stock than currently anticipated, such funds might not to be sufficient to
fund all of such transfers, and the Diversified Group might defer receipt of
such transfer on a short-term, interest-bearing basis. However, the PKS Board
does not intend to cause the Diversified Group to provide any such deferral on a
long-term basis. If the Construction & Mining Group is unable to fund all such
transfers within a short period after the Spin-
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off, PKS intends to cause the Construction & Mining Group to borrow from third
parties the funds necessary to make such transfers. PKS does not foresee any
circumstance under which those transfers would not ultimately be made. In any
event, PKS has reserved the right to impose a limit on the amount of
Exchangeable Stock that may be exchanged in the Exchange Offer, and the
liquidity of the Construction & Mining Group is one factor the PKS Board of
Directors would consider in determining whether such a limit were appropriate.
See "The Exchange Offer -- Terms of the Exchange Offer."
BUSINESSES OF CONSTRUCTION & MINING GROUP
The Exchange Offer and the Spin-off will not affect the businesses of the
Construction & Mining Group, except to the extent such businesses may be
affected by the funds transfer described above under "Transfer from Construction
& Mining Group." Moreover, as a result of the making of such transfer, the
Exchange Offer and the Spin-off will have no effect on the Class C Per Share
Price. Accordingly, holders of Exchangeable Securities (other than Class D
Debentures) who elect not to participate in the Exchange Offer will retain an
indirect interest in the Construction & Mining Group, and the prospects for
future appreciation, or the risk of a decline, in the Class C Per Share Price
will depend upon the success of the construction and mining businesses in which
the Construction & Mining Group currently engages and chooses to engage in the
future.
The risks associated with the businesses of the Construction & Mining Group
include all of the risks attendant to any construction business, including the
impact on the construction industry of changes in national and regional
economies, the cyclical nature of the construction business, the risk of
bankruptcy of, or non-payment by, owners, the risk of cost overruns and job
losses on particular projects, risks associated with increasing competition in
the construction business, the risks of foreign construction operations, and the
costs and restraints imposed upon operations by regulatory requirements.
EFFECT OF SPIN-OFF ON CLASS D PER SHARE PRICE; VALUE OF SPIN-OFF STOCK DEPENDENT
ON MARKET
Because approximately one-third of the current Class D Per Share Price of
$60.25 is attributable to MFS, the Class D Per Share Price will be significantly
reduced when the Spin-off is consummated. See "Overview -- The Spin-off." The
amount of such reduction will depend upon the number of Exchangeable Securities
exchanged in the Exchange Offer. For example, assuming in two alternative
scenarios that (i) 3,000,000 shares and (ii) 5,000,000 shares of Exchangeable
Stock, and in each case all of the Exchangeable Debentures, are exchanged in the
Exchange Offer, the estimated Class D Per Share Price after giving effect to the
Spin-off would be $41.00 and $41.75, respectively. Accordingly, as a result of
the Spin-off, the price at which holders of Class D Stock can thereafter sell
such stock to PKS will be significantly reduced. Although there are no transfer
restrictions on the Class D Stock, there is no established trading market for
such stock, and there has been only limited trading activity in such stock. For
the foreseeable future, there is no assurance that a holder of Class D Stock
will be able to sell such stock otherwise than pursuant to PKS's repurchase
obligation under the PKS Certificate of Incorporation. See "-- Effect of Class D
Stock Becoming Publicly Traded," below.
PKS will have no repurchase obligation with respect to the Spin-off Stock.
The ability of a holder of MFS Common Stock to realize value upon a sale of such
stock will be entirely dependent on the market for MFS Common Stock. The market
price of MFS Common Stock has fluctuated significantly since MFS Common Stock
began public trading in May 1993. Since the commencement of public trading, MFS
Common Stock has traded as high as $57.75 per share (in the third quarter of
1993) and as low as $20.50 per share (in the second quarter of 1994); during the
12 months preceding the date of this Prospectus, the high and low trading prices
per share were $_____ and $_____, respectively. See "-- Risk Factors Relating to
MFS" below for a discussion of certain factors that may affect the market price
of MFS Common Stock. The MFS Preferred Stock is non-transferable for a period of
six years from its date of issuance with limited exceptions. See "Description of
Securities -- MFS Preferred Stock."
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BUSINESSES OF DIVERSIFIED GROUP AFTER SPIN-OFF
After the Spin-off is consummated, MFS will be independent of PKS rather
than being part of the Diversified Group. Accordingly, the Class D Stock will no
longer represent an indirect interest in the business of MFS, and the prospects
for future appreciation in the Class D Per Share Price will depend on the
remaining businesses of the Diversified Group and any other businesses the
Diversified Group may choose to enter in the future, as well as on other factors
that affect, and will continue to affect, such prospects.
The Diversified Group currently engages in three principal businesses other
than the businesses of MFS: coal mining, through KDG's wholly owned subsidiary
Kiewit Coal Properties Inc. ("KCP"); independent power production, both through
KDG's ownership of a significant minority interest in California Energy Company
Inc. ("CECI") and through the project development and ownership activities of
KDG's wholly owned subsidiary, Kiewit Energy Company ("KEC"); and the
telecommunications business, through KDG's ownership of a controlling interest
in C-TEC Corporation ("C-TEC"). See "Business" in the PKS Annual Report on Form
10-K for the year ended December 31, 1994 incorporated by reference in this
Prospectus for a discussion of the Diversified Group's principal businesses.
A holder of Exchangeable Securities should carefully consider the following
matters relating to the principal businesses of the Diversified Group before
deciding to tender Exchangeable Securities pursuant to the Exchange Offer. Such
matters are also relevant to the assessment by holders of Class D Stock of the
consequences of the Spin-off.
DIVERSIFIED GROUP CASH FLOWS. The Diversified Group derives most of its
operating cash flow from its coal mining business. During 1994, for example, the
Diversified Group received $71 million, or substantially all, of its after-tax
net operating cash flow from its coal mining operations. Although that business
currently produces substantial cash flow, those cash flows will decline
substantially over the next few years. For example, after-tax net operating cash
flow from coal sales under long-term purchase contracts, which was approximately
$55 million in 1994, is expected to decline to approximately $39 million by 1998
and to approximately $10 million by 2002, and will decline further thereafter.
These decreases are primarily due to a decrease in amounts of coal required to
be purchased under those contracts. Both CECI and C-TEC reinvest substantially
all of their operating cash flows, and neither CECI nor C-TEC is expected to pay
dividends to KDG in the foreseeable future. As a result, the ability of the
Diversified Group to fund future business opportunities will depend, in part,
upon its ability to invest its currently available cash and the remaining coal
mining cash flows in businesses that will be able to generate cash from
operations.
PROJECT DEVELOPMENT BUSINESSES. CECI and KEC, through its international
power project development joint venture with CECI, are actively engaged in the
business of developing, constructing, owning and operating new power projects.
These development activities can require substantial expenditures before a
project is determined to be feasible, economically attractive or capable of
being financed. The future growth of CECI's and KEC's businesses depends on the
success of such developmental endeavors, and there can be no assurance that
development efforts on any particular project, or in general, will be
successful.
CECI OPERATING REVENUES. CECI currently depends on a series of contracts
with a single customer, Southern California Edison ("SCE"), for substantially
all of its operating revenues. The contract prices payable for energy supplied
by CECI to SCE are fixed under those contracts for set periods (which periods
end from 1997 to 2000 for CECI's principal contract), and are then based on
SCE's published "avoided cost of energy." For example, for September 1994 the
time period-weighted average of SCE's avoided cost of energy was 2.2 CENTS per
kwh, compared to the time period-weighted average September 1994 selling prices
for energy under CECI's contracts of approximately 10.9 CENTS per kwh. Thus, the
revenues generated by each of CECI's facilities operating under its current
contracts are likely to decline significantly after the expiration of the
fixed-price period.
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LEVERAGE. Although KDG does not have substantial indebtedness, CECI and, to
a lesser extent, C-TEC have higher levels of indebtedness. In particular, CECI
has incurred substantial indebtedness, both at the corporate level and to
finance development of power projects. In addition, KEC expects to use debt
financing for a significant portion of the costs of the international power
projects to be developed with CECI. Although debt financing may increase the
equity returns to CECI, C-TEC and KEC from their activities, it may also
increase the risk associated with those activities, and the abilities of those
companies to grow in the future.
COMPETITION. Each of KCP, CECI and C-TEC is subject to substantial
competition in their separate areas of business. For example, KCP is subject to
substantial competition from other producers of coal, and the end of certain
long-term coal purchase arrangements will substantially increase the competitive
pressures to which KCP is subject. Although most of CECI's power sales are the
subject of long-term power purchase contracts, it is subject to substantial
competition in obtaining new contracts and power project development
opportunities, both in the U.S. and abroad. C-TEC is subject to increasing
levels of competition in the rapidly changing and evolving sectors of the
telecommunications industry in which it competes.
REGULATION. Each of KCP, CECI and C-TEC is subject to varying degrees of
federal, state, local and international regulation. KCP, for example, is subject
to strict environmental regulation in its coal mining operations. CECI is also
subject to environmental regulation in the operation of its power plants, as
well as various regulatory schemes or governmental contracts that can affect the
pricing and sales of electric power. C-TEC's businesses are subject to extensive
federal, state and local regulations that have changed significantly in recent
years and are likely to continue to change in the future. There can be no
assurances that the Diversified Group's businesses will not be adversely
impacted by the costs of complying with current regulations or by future
regulatory changes.
INTERNATIONAL OPERATIONS. Both CECI and C-TEC have significant
international operations. CECI's primary project development focus is on
projects located in the Philippines and Indonesia.
C-TEC recently acquired a 40% interest in Megacable, Mexico's second largest
cable television company. In addition, KEC's primary business focus is its joint
venture with CECI for the development of international power projects.
International operations and investments can be subject to factors that do not
affect domestic operations, including foreign political and economic
developments, currency exchange risks, currency repatriation risks, foreign tax
concerns, political instability, expropriation and uncertainty surrounding
domestic and foreign laws and policies affecting foreign investments. In
addition, the Diversified Group's international operations are concentrated in a
few countries (the Philippines, Indonesia and Mexico). Adverse economic and
political developments in these countries could disproportionately affect the
businesses of the Diversified Group.
MANAGEMENT. The Diversified Group has placed a substantial emphasis on the
abilities of key managers in making its investments in CECI and C-TEC. The loss
of one or more of the key managers of those businesses could have a significant
effect on those businesses and on the performance of the Diversified Group as a
whole.
CECI MINORITY INTEREST. KCP is the sole owner of, or the managing partner
of, its coal mining operations, and KDG holds a controlling interest in C-TEC.
KDG, however, holds only a minority share, albeit a significant one, in CECI,
and has the right to elect only three of the fourteen members of CECI's board of
directors. CECI is the managing partner of the independent power development
joint venture between KEC and CECI. As a result of these factors, KDG may have
less control over its independent power production businesses than it has over
its other Diversified Group businesses.
EFFECTS OF THE EXCHANGE OFFER AND THE SPIN-OFF ON LOANS SECURED BY PKS STOCK
The MFS Common Stock, unlike PKS stock, constitutes "margin stock" within
the meaning of various Federal Reserve regulations restricting the amount of
credit that a lender may extend in
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connection with the purchase or carrying of margin stock where the loan is, or
under such regulations is deemed to be, secured directly or indirectly by margin
stock. Such regulations also impose certain procedural requirements in
connection with such loans.
In addition, a lender that has extended credit secured by PKS stock, in
making decisions as to how much credit to extend against the collateral held by
such lender, may assign a different loan-to-value ratio to the Class D Stock as
compared to the Class B Stock and Class C Stock. A lender may also assign a
different loan-to-value ratio to the Class D Stock and the Spin-off Stock after
the Spin-off as compared to the loan-to-value ratio assigned to the Class D
Stock before the Spin-off. Further, the Class D Per Share Price may be less
readily predictable than the Class B&C Per Share Price has historically been,
and the market value of the MFS Common Stock is expected to be more volatile
than the Class D Per Share Price has historically been. A decline in the Class D
Per Share Price of Class D Stock pledged to a lender or a decline in the value
of MFS Common Stock pledged to a lender could result in the lender requiring
that the borrower pledge additional collateral.
If Exchangeable Securities being exchanged pursuant to the Exchange Offer
are pledged to a lender, Offered Stock received in exchange for such
Exchangeable Securities is probably also subject to the pledge under the terms
of the loan documentation between the securityholder and the lender. In
addition, if Class D Stock (including Class D Stock received in exchange for
Exchangeable Securities in the Exchange Offer) is pledged to a lender, some or
all of the Spin-off Stock received in the Spin-off is probably also subject to
the pledge. As a result, a securityholder may be required to deliver Offered
Stock received in exchange for Exchangeable Securities in the Exchange Offer and
Spin-off Stock received in the Spin-off to such securityholder's lender upon
receipt of that stock.
IN LIGHT OF THE FOREGOING, PERSONS WHO HAVE PLEDGED EXCHANGEABLE SECURITIES
TO A LENDER AND WHO ARE CONSIDERING PARTICIPATION IN THE EXCHANGE OFFER, OR WHO
HAVE PLEDGED CLASS D STOCK TO A LENDER, SHOULD CONSULT WITH THE LENDER AS TO THE
EFFECT OF THE EXCHANGE OFFER AND THE SPIN-OFF ON THEIR LOAN ARRANGEMENTS.
EFFECT OF CLASS D STOCK BECOMING PUBLICLY TRADED
Under the PKS Certificate of Incorporation, the right of the holders of
Class D Stock to require PKS to repurchase such stock terminates when the Class
D Stock becomes Publicly Traded. In that event, the ability of a holder of Class
D Stock to realize value upon a sale of such stock will be entirely dependent on
whatever market then exists for the Class D Stock. Moreover, the PKS Certificate
of Incorporation provides that, after the Class D Stock is Publicly Traded, any
subsequent conversion of Class C Stock into Class D Stock would be based upon
the market value of the Class D Stock, rather than the Class D Per Share Price.
Accordingly, holders making such conversions would not be able to derive any
actual or potential benefit from the excess, if any, of the market value of the
Class D Stock over the Class D Per Share Price, or any excess of the market
value of the businesses comprising the Diversified Group over the value assigned
to the assets of the Diversified Group under the PKS Certificate of
Incorporation for purposes of the determination of the Class D Per Share Price.
Further, as noted above, the right of a holder of Class D Stock to convert such
stock to Class C Stock in connection with an offering of Class C Stock would
terminate if the Class D Stock became Publicly Traded. Even if the Class D Stock
did become Publicly Traded, there is no assurance that an efficient trading
market for the Class D Stock would develop. Further, the market price of the
Class D Stock is expected to be more volatile than the Class D Per Share Price
has historically been.
The PKS Board of Directors has considered and will in the future again
consider the feasibility and desirability of listing the Class D Stock on a
national securities exchange, on the Nasdaq National Market or in the
over-the-counter market or taking other action to facilitate the Public Trading
of the Class D Stock. If the Class D Stock were to become Publicly Traded, the
current aggregation of businesses that constitute the Diversified Group and
certain characteristics of the capital structure of the Company might result in
a public market valuation of the Class D Stock that was lower than the intrinsic
value of the underlying Diversified Group businesses, even if such market
valuation were higher than the Class D Formula Value. Specifically, the fact
that the capital structure of the Company uses different classes of stock to
reflect the performance of the two Groups of the Company, and the
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fact that the voting characteristics of the Class C Stock, which will continue
to be owned only by employees of the Company, give the Class C Stock a
significant measure of voting control over the Company, could cause an
undervaluation of the Class D Stock by the investing public. The PKS Board would
take these factors into account in making a decision regarding facilitation of
Public Trading of the Class D Stock. In addition, the PKS Board would take into
account the desirability of reducing the Company's repurchase obligations with
respect to its capital stock, the feasibility of raising capital by issuing
Class D Stock in public offerings or private placements, and any improvements of
the earnings of and the general level of maturation of the newer Diversified
Group businesses. Moreover, the ability to provide for the listing of the Class
D Stock on a securities exchange, the Nasdaq National Market or in the
over-the-counter market will be subject to the laws, regulations and listing
eligibility criteria in effect from time to time.
POTENTIAL CONFLICTS; FIDUCIARY DUTIES OF THE PKS BOARD
Under Delaware law, the management of the business of the Company and,
indirectly, the business of its subsidiaries, is under the direction of the PKS
Board of Directors. Accordingly, the PKS Board has the right to allocate and
transfer assets and liabilities between the Groups, to establish fees and
allocate expenses in connection with inter-company transactions between the
Groups and with the Company itself and to establish and declare dividends paid
to the Company by its direct subsidiaries. Such actions could affect the future
earnings of the respective Groups, as well as the amounts available for the
payment of dividends on and the repurchase price and liquidation value of the
respective classes of stock. Accordingly, such actions may constitute conflicts
between the interests of the holders of Class B Stock and Class C Stock and the
holders of Class D Stock. Depending on the magnitude of such actions, and
whether or not any compensation for such actions is provided for by the PKS
Board, such actions could result in a substantial reduction in the stockholders'
equity attributable to the Group adversely affected by such actions and a
corresponding reduction in the value of the related class of PKS stock.
The PKS Board will not be constrained by specific standards in making the
foregoing determinations, but rather such actions will be taken in the sole
discretion of the PKS Board, subject only to the PKS Board's fiduciary duty to
act with due care and in the best interest of PKS and its stockholders.
The PKS Board presently contemplates significant transfers of assets between
the Groups only under two circumstances. First, the PKS Board intends to
continue its practice of transferring funds from one Group to the other to
reflect the change in the respective ownership interests of the classes of stock
in the event of conversions of stock from one class to another (and in the case
of the Exchange Offer, to reflect the exchange of Class B Stock and Class C
Stock for Class D Stock) so as to preclude the dilution of stockholders'
interests that would otherwise result from the issuance of shares upon
conversion (or exchange). Such adjustments are intended to maintain, rather than
to alter, the respective per share values of the classes of stock as determined
under the formulas provided for in the PKS Certificate of Incorporation. Second,
in the event that one of the Groups should incur substantial losses or
liabilities, the PKS Board might consider making a transfer of assets to the
affected Group from the other Group if the PKS Board determined that such
transfer was in the overall best interest of PKS and its stockholders. In such
event, the PKS Board intends to provide for compensation to the Group making the
transfer. The nature, amount and timing of such compensation would be determined
in light of the circumstances prevailing at the time. See "-- Transfers from
Construction & Mining Group," above for a discussion of a possible
interest-bearing deferral of receipt of funds owed to the Diversified Group by
the Construction & Mining Group in connection with the Exchange Offer.
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RISK FACTORS RELATING TO MFS
OPERATING LOSSES
The development of MFS's businesses and the installation and expansion of
its networks require significant expenditures, a substantial portion of which is
incurred before the realization of revenues. These expenditures, together with
the associated early operating expenses, result in negative cash flow until an
adequate customer base is established. MFS reported loss from operations of
approximately $11.8 million, $31.5 million and $136.1 million for the three
years ended December 31, 1992, 1993 and 1994, respectively, and $56.6 million
for the three months ended March 31, 1995. Although its revenues have increased
substantially in each of the last three years, MFS has incurred significant
increases in expenses associated with the development and expansion of its fiber
optic networks, services and customer base. There can be no assurance that MFS
will achieve or sustain profitability in the future.
SIGNIFICANT CAPITAL REQUIREMENTS
Expansion of MFS's existing networks and services and the development of new
networks and services require significant capital expenditures. MFS expects to
fund additional capital requirements through existing resources, internally
generated funds and additional debt or equity financing as appropriate. There
can be no assurance, however, that MFS will be successful in producing
sufficient cash flow or raising sufficient debt or equity capital on terms that
it will consider acceptable. Sales of substantial numbers of shares of MFS
Common Stock in the public market in the future could impair MFS's ability to
raise additional capital through the sale of its equity securities. Failure to
generate sufficient funds may require MFS to delay or abandon some of its future
expansion or expenditures, which could have a material adverse effect on its
growth.
COMPETITION
DOMESTIC TELECOMMUNICATIONS SERVICES. In each of its markets, MFS faces
significant competition from the local exchange carriers (the "LECs"), which
currently dominate their local telecommunications markets. In addition, MFS
faces competition in the provision of certain of its services from other
competitive access providers ("CAPs"), long distance companies, cable TV
companies, equipment vendors and others. A continuing trend toward business
combinations and alliances in the telecommunications industry may create
significant new competitors to MFS.
INTERNATIONAL TELECOMMUNICATIONS SERVICES. MFS faces competition in the
provision of its international services from many service providers including,
among others, AT&T Corporation, MCI Communications Corporation, Sprint
Corporation, British Telecommunications PLC and government-owned telephone
companies that retain monopoly status for certain services in certain European
countries.
NETWORK SYSTEMS INTEGRATION. MFS Network Technologies' primary network
systems integration competitors are the Bell Operating Companies (the "BOCs"),
long distance carriers, equipment manufacturers and major independent telephone
companies. In certain circumstances, MFS Network Technologies may also compete
with regional and local systems integration and construction firms for
integration and installation projects. In the automatic vehicle identification
market, MFS Network Technologies competes with specific manufacturers and
several of the aerospace defense contractors that have indicated an intention to
shift to commercial markets.
UNPREDICTABLE COMPETITIVE ENVIRONMENT. Given the increasing incidence of
legal and regulatory initiatives, which affect future competition both in the
United States and internationally, MFS is unable to predict the nature of such
future competition with any precision. Changes to existing laws and regulation
could enhance the ability of certain service providers to compete with MFS, and
could create new competitors to MFS services. In addition, many of MFS's
existing and potential competitors have financial, personnel and other resources
significantly greater than those of MFS.
26
<PAGE>
REGULATION
MFS is subject to varying degrees of federal, state, local and international
regulation. MFS is not currently subject to price cap or rate of return
regulation, nor is it currently required to obtain U.S. Federal Communications
Commission (the "FCC") authorization for installation or operation of its
network facilities used for domestic services. FCC approval is required, however
for the installation and operation of its international facilities and services.
The FCC has determined that nondominant carriers, such as MFS, are required to
file interstate tariffs on an ongoing basis. Challenges to these tariffs by
third parties may cause MFS to incur substantial legal and administrative
expenses. MFS's subsidiaries that provide intrastate service are generally
subject to certification and tariff filing requirements by state regulators. In
addition, MFS is subject to varying degrees of regulation in the foreign
jurisdictions in which it conducts operations. Although the trend in federal,
state and international regulation appears to favor increased competition, no
assurance can be given that changes in current or future regulations adopted by
the FCC, state or foreign regulators or legislative initiatives in the United
States and abroad would not have a material adverse effect on MFS.
RISKS OF EXPANSION AND IMPLEMENTATION
MFS is engaged in the expansion and development of its networks and
services. MFS expects such expansion and development to accelerate in the near
future. The expansion and development of its networks will depend on, among
other things, its ability to assess markets, design fiber optic network backbone
routes, install facilities and obtain rights-of-way, building access and any
required government authorizations and/or permits and the outcome of certain
state and federal regulatory actions and legislative initiatives which affect
MFS's ability to offer economically viable services, all in a timely manner, at
reasonable costs and on satisfactory terms and conditions. As a result, there
can be no assurance that MFS will be able to expand its existing networks or
install or acquire new networks. If MFS is not able to expand its networks or
install new networks, there will be a material adverse effect on its growth.
Foreign operations or investment may be adversely affected by local
political and economic developments, exchange controls, currency fluctuations,
royalty and tax increases, retroactive tax claims, expropriation, import and
export regulations and other foreign laws or policies as well as by laws and
policies of the United States affecting foreign trade, taxation and investment.
In addition, in the event of a dispute arising from foreign operations, MFS may
be subject to the exclusive jurisdiction of foreign courts or may not be
successful in subjecting foreign persons to the jurisdiction of courts in the
United States. MFS may also be hindered or prevented from enforcing its rights
with respect to a governmental instrumentality because of the doctrine of
sovereign immunity.
RAPID TECHNOLOGICAL CHANGES
The telecommunications industry is subject to rapid and significant changes
in technology. While MFS believes that, for the foreseeable future, these
changes will neither materially affect the continued use of fiber optic cable
nor materially hinder its ability to acquire necessary technologies, the effect
of technological changes, including changes relating to emerging wireline and
wireless transmission technologies, on the businesses of MFS cannot be
predicted.
DEPENDENCE ON KEY PERSONNEL
MFS's businesses are managed by a small number of key executive officers,
particularly Mr. James Q. Crowe, Chairman of the Board of Directors and Chief
Executive Officer of MFS, and Mr. Royce J. Holland, President, Chief Operating
Officer and a Director of MFS, the loss of certain of whom could have a material
adverse effect on MFS. MFS believes that its future success will depend in large
part on its continued ability to attract and retain highly skilled and qualified
personnel. MFS does not have any employment or non-competition agreements with
any of its key executive officers.
POTENTIAL EFFECT OF SPIN-OFF ON MARKET FOR MFS COMMON STOCK
In the event the Spin-off is consummated, PKS will distribute all of the
shares of MFS Common Stock and MFS Preferred Stock then owned by it to the
holders of Class D Stock. Such shares of MFS
27
<PAGE>
Common Stock are expected to constitute approximately 65% of the outstanding
shares of MFS Common Stock, after giving effect to the MFS Recapitalization. The
persons who are members of the boards of directors of PKS and MFS (other than
one director of PKS who became a director in June 1995), and who are holders of
Class D Stock, have entered into agreements with MFS restricting their right to
resell any shares of MFS Common Stock received by them as a result of the
Spin-off (including MFS Common Stock received upon conversion of MFS Preferred
Stock received by them) until May 24, 1997, with certain limited exceptions;
provided, however, that each such person may sell up to 50,000 of such shares on
or after May 24, 1996. Based upon the number of shares of PKS stock held by such
persons, an aggregate of approximately 9,200,000 shares of MFS Common Stock or,
approximately 15% of the total number of shares of MFS Common Stock expected to
be outstanding at the time of the Spin-off, will be subject to such agreements.
See "Certain Transactions -- Agreements Regarding MFS Spin-off Stock."
Nonetheless, after the Spin-off a substantial number of shares of MFS Common
Stock will become available for future sale in the public markets. In addition,
since MFS has issued, and may continue to issue, shares of MFS Common Stock in
connection with financing, employee benefit plans, acquisitions or otherwise, it
is possible that the number of outstanding shares of MFS Common Stock available
for sale in the future could increase significantly. Sales of substantial
numbers of such shares in the public market in the future could adversely affect
the market price of the MFS Common Stock and could impair MFS's ability to raise
additional capital through the sale of its equity securities.
VARIABILITY OF QUARTERLY OPERATING RESULTS; VOLATILITY
As a result of the significant expenses associated with the expansion and
development of its networks and services, MFS anticipates that its operating
results could vary significantly from period to period and such variability
could adversely affect MFS's results of operations. Accordingly, these revenues
are likely to vary significantly from period to period, and such variability
could adversely affect MFS's results of operations. In addition, the market
prices of securities of growth companies similar to MFS have historically been
highly volatile. Future announcements concerning MFS or its competitors,
including quarterly results, technological innovations, services or government
legislation or regulation, may have a significant effect on the market price of
the MFS Common Stock.
DIVIDEND PAYMENTS; LIQUIDATION
MFS has never paid a cash dividend on the MFS Common Stock and does not
presently intend to do so for the forseeable future. In January 1994, MFS issued
approximately $788 million aggregate principal amount of Senior Discount Notes
(the "Senior Discount Notes") pursuant to an Indenture between MFS and IBJ
Schroder Bank & Trust Company, as Trustee (the "Indenture"). In the event of a
liquidation of MFS, the holders of the Senior Discount Notes, together with all
other creditors of MFS, will be entitled to be paid in full before any payments
are made in respect of the MFS Preferred Stock. In addition, on May 23, 1995,
MFS issued, in an underwritten public offering, 9,500,000 Depositary Shares,
each representing a one one-hundredth interest in a share of Series A 8%
Cumulative Convertible Preferred Stock, par value $.01 per share (the "DECS").
The DECS rank PARI PASSU with the MFS Preferred Stock as to any payment in the
event of the liquidation of MFS, and the holders of the DECS are entitled to
receive an aggregate of at least $318,250,000 plus all accrued and unpaid
dividends on the DECS in the event of the liquidation of MFS. The Indenture and
other debt agreements to which MFS is a party restrict MFS's ability to pay cash
dividends. There is no assurance that other agreements similar to the Indenture
and these other debt agreements which MFS may enter into in the future will not
contain similar restrictions on payment of cash dividends. As a result, MFS does
not anticipate that it will be permitted to pay cash dividends in the near
future.
LIMITED TRANSFERABILITY OF MFS PREFERRED; IRREVOCABLE PROXY
The shares of MFS Preferred Stock to be received by the holders of Class D
Stock in the Spin-off cannot be sold or transferred without the consent of MFS
for six years from the date of issuance, except under certain limited
circumstances. See "Description of Securities -- MFS Preferred Stock." MFS does
not intend to consent to any transfers that might have the effect of
transferring a significant percentage of voting power to a third party. The
holders of the MFS Preferred Stock and the holders of
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<PAGE>
MFS Common Stock will vote together as a single class except as otherwise
required by law. Each share of MFS Preferred Stock has five (5) votes on all
matters presented to the stockholders of MFS. KDG, however, has agreed to grant
the Secretary and Assistant Secretary of MFS an irrevocable proxy to vote all of
the shares of MFS Preferred Stock in proportion to the vote of the holders of
MFS Common Stock on all matters (including, but not limited to, business
combinations) other than the election of MFS directors and matters as to which
the holders of MFS Preferred Stock vote as a separate class under Delaware
corporation law. The irrevocable proxy will be binding on all recipients of MFS
Preferred Stock in the Spin-off and, as a result, will limit the ability of the
holders of shares of MFS Preferred Stock to influence MFS actions on all matters
other than the election of directors. See "Description of Securities -- MFS
Preferred Stock."
POTENTIAL ANTITAKEOVER EFFECT OF CERTAIN CHARTER AND BY-LAW PROVISIONS
MFS has 905,000 shares of authorized and unissued preferred stock and in
excess of 100,000,000 shares of authorized and unissued MFS Common Stock that
could be issued to a third party selected by current management or used as the
basis for a shareholders' rights plan, which could have the effect of deterring
a potential acquirer. At a meeting on April 26, 1995 (the "April 26 MFS Board
Meeting"), the MFS Board of Directors approved, and resolved to submit to the
stockholders of MFS for approval at the MFS 1995 annual meeting of stockholders,
an amendment to the MFS certificate of incorporation to increase the authorized
number of shares of preferred stock of MFS from 1,000,000 to 25,000,000. The
approval by the stockholders of MFS at the MFS 1995 annual meeting of the
increase in the number of authorized shares of preferred stock is required in
connection with the Spin-off. PKS has advised MFS that it intends to vote all
shares of MFS Common Stock owned or controlled by it for this proposal at the
MFS 1995 annual meeting of stockholders. Accordingly, by virtue of PKS's
indirect ownership of approximately 67% of the outstanding shares of MFS Common
Stock at the time of the MFS 1995 annual meeting of stockholders, this proposal
will be adopted without the vote of any other stockholders of MFS.
In addition, at the April 26 MFS Board Meeting, the MFS Board of Directors
approved, and resolved to submit to the stockholders of MFS for approval at the
MFS 1995 annual meeting of stockholders, certain other amendments to the MFS
certificate of incorporation, which include proposals to: amend the MFS
certificate of incorporation to divide the MFS Board of Directors into three
classes, prohibit stockholders of MFS from taking action by written consent,
require that special meetings of stockholders be called only by the board of
directors or the chairman of the board of MFS and require the affirmative vote
of at least 66 2/3% of the votes entitled to be cast thereon to adopt, repeal,
alter, amend or rescind the by-laws of MFS. PKS has agreed that, if the MFS
Recapitalization is approved by the non-PKS holders of MFS Common Stock as
described herein, PKS will vote all of the shares of MFS Common Stock owned or
controlled by it in favor of the proposed amendments, thus assuring their
adoption. In addition, at the April 26 MFS Board Meeting, the MFS Board of
Directors also approved certain amendments to the by-laws of MFS that prescribe
specific procedural requirements for the nomination of directors and the
introduction of business by a stockholder of record at an annual meeting of
stockholders where such business is not specified in the notice of meeting or
brought by or at the discretion of the MFS Board of Directors. The MFS Board of
Directors also plans to consider in the near future, the adoption of a
shareholder rights plan. Notwithstanding the receipt of the requisite
stockholder approval or further approval of the MFS Board of Directors, each of
the foregoing amendments to the MFS certificate of incorporation and the by-laws
of MFS, as well as the shareholder rights plan will be implemented only upon
consummation of the Spin-off.
The ability of the MFS Board of Directors to establish the terms and
provisions of different series of preferred stock, together with the other
features of the MFS certificate of incorporation and the by-laws of MFS
described above, could make more difficult or discourage the removal of MFS's
management, which some or a majority of the MFS stockholders may believe to be
beneficial, and could discourage or make more difficult or expensive, among
other transactions, a merger involving MFS, or a tender offer, open market
purchase program or other purchases of the capital stock of MFS in
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<PAGE>
circumstances that would give MFS stockholders the opportunity to realize a
premium on the sale of their MFS capital stock over the then-prevailing market
prices, which some or a majority of such holders may deem to be in their best
interests.
OVERVIEW
THE EXCHANGE OFFER
In the Exchange Offer, PKS is offering to exchange:
(i) .416598 of a share of Class D Stock for each share of Class B Stock and
each share of Class C Stock outstanding (including all shares of Class C
Stock issued in exchange for Exchangeable Debentures pursuant to the
Exchange Offer, as described herein);
(ii) 24.75 shares of Class C Stock and 24.75 shares of Class D Stock for
each $1,000 principal amount of the Company's outstanding 1990 Series
Convertible Debentures due October 31, 2000 (such shares of Class C
Stock will then be exchangeable for a total of 10.31 shares of Class D
Stock pursuant to the Exchange Offer);
(iii) 22.98 shares of Class C Stock and 22.98 shares of Class D Stock for
each $1,000 principal amount of the Company's outstanding 1991 Series
Convertible Debentures due October 31, 2001 (such shares of Class C
Stock will then be exchangeable for a total of 9.57 shares of Class D
Stock pursuant to the Exchange Offer); and
(iv) 19.97 shares of Class D Stock for each $1,000 principal amount of the
Company's 1993 Series Class D Convertible Debentures due October 31,
2003
(subject, in each case, to rounding conventions designed to eliminate fractional
shares, as described herein).
The Exchange Offer is being made on the terms and subject to the conditions
described herein under "The Exchange Offer" and in the Letter of Transmittal. If
the Exchange Offer is consummated, the Spin-off will be consummated promptly
thereafter.
THE SPIN-OFF
The Exchange Offer is being made in connection with a proposal by PKS to
effect the Spin-off by making a dividend distribution to the holders of Class D
Stock, including Class D Stock issuable in the Exchange Offer, of the Spin-off
Stock, consisting of all of the 40,091,644 shares of MFS Common Stock and all of
the 15,000,000 shares of MFS Preferred Stock to be held by PKS at the time of
the Spin-off. The Spin-off Stock will include the 40,062,658 shares of MFS
Common Stock and the 15,000,000 shares of MFS Preferred Stock held by KDG after
giving effect to the MFS Recapitalization, which stock will be distributed as a
dividend by KDG to PKS immediately before the Spin-off. The Spin-off Stock will
also include 28,986 shares of MFS Common Stock that PKS will purchase for
$1,000,000 immediately after the dividend by KDG to PKS but prior to the
Spin-off. The per share purchase price of approximately $34.50 for such
transaction was based on the average trading price of the MFS Common Stock for
the 30-day period preceeding the date such transaction was agreed upon by the
parties. Such purchase will provide MFS additional cash for payment of the legal
and other costs MFS has incurred or will incur in connection with the
transactions described herein. In addition, the purchase by PKS of such stock
will cause the Spin-off to constitute a "reorganization" for federal income tax
purposes (and not only a tax-free spin-off). Treatment of the Spin-off as a
reorganization will also qualify the receipt of, and transactions involving, the
Spin-off Stock for tax-free treatment in certain non-federal jurisdictions in
which holders of PKS stock reside. MFS Common Stock distributed in the Spin-off
will constitute the major portion of the Spin-off Stock in terms of value, while
the MFS Preferred Stock will constitute a minor portion of the Spin-off Stock in
terms of value. The MFS Common Stock is currently traded on the Nasdaq National
Market under the symbol "MFST." On [ ], 1995 the last reported sale price
of the MFS Common Stock as reported by the Nasdaq
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<PAGE>
National Market was $[ ] per share. No holder of Class D Stock will be
required to pay any cash or other consideration, to surrender or exchange shares
of Class D Stock or any other security or to take any other action in order to
receive the Spin-off Stock pursuant to the Spin-off.
The Company currently expects that, if the holders of a majority of the MFS
Common Stock present in person or by proxy and voting at the 1995 MFS annual
stockholders meeting, which is presently expected to be held on [August ],
1995, approve the MFS Recapitalization, the Spin-off dividend will be declared
as of, and paid to holders of Class D Stock of record as of, the day after the
Expiration Date. See "The Spin-off -- Manner of Effecting the Distribution."
The Company has received the Ruling from the IRS confirming that the
Spin-off will be tax-free to the holders of Class D Stock for United States
federal income tax purposes. See "The Spin-off -- Certain United States Federal
Income Tax Considerations Relating to the Spin-off". The Spin-off will not be
consummated unless the Ruling remains substantially in effect as of the Spin-off
Date. See "The Spin-off -- Conditions to Spin-off; Right of PKS to Abandon,
Defer or Modify the Spin-off."
After the Spin-off, holders of Class D Stock will hold the Class D Stock
held by them prior to the Spin-off, as well as the MFS Common Stock and MFS
Preferred Stock received in the Spin-off. The actual number of shares of MFS
Common Stock and MFS Preferred Stock distributed per share of Class D Stock will
depend on the number of shares of Class D Stock issued pursuant to the Exchange
Offer. Accordingly, PKS will not be able to determine precisely the number of
shares of MFS Common Stock or the number of shares of MFS Preferred Stock that
will be distributed per share of Class D Stock in connection with the Spin-off
until the Expiration Date. The following table sets forth PKS's estimates of the
number of shares of MFS Common Stock and MFS Preferred Stock to be distributed
per share of Class D Stock, assuming that (i) all of the Exchangeable Debentures
are exchanged for Offered Stock in the Exchange Offer and (ii) the stated number
of shares of Exchangeable Stock are exchanged for Class D Stock in the Exchange
Offer:
<TABLE>
<CAPTION>
ASSUMED NUMBER ESTIMATED NUMBER OF ESTIMATED NUMBER OF
OF SHARES OF SHARES OF MFS COMMON SHARES OF MFS PREFERRED
EXCHANGEABLE STOCK DISTRIBUTED PER STOCK DISTRIBUTED PER
STOCK EXCHANGED(1) SHARE OF CLASS D STOCK(2) SHARE OF CLASS D STOCK(2)
------------------ ------------------------- -------------------------
<S> <C> <C>
3,000,000 1.77 0.66
5,000,000 1.71 0.64
<FN>
------------------------
(1) The 3,000,000 share assumption reflects PKS's estimate of the number of
shares of Exchangeable Stock likely to be tendered in the Exchange Offer,
based upon the tender indications that PKS has received from members of the
PKS Board of Directors and members of the KCG Board of Directors, and PKS's
estimates of the likely number of additional tenders. The 5,000,000 share
assumption is set forth solely to illustrate the impact of the tender of
substantially more shares than anticipated by PKS. PKS does not believe
that a tender of 5,000,000 shares is likely.
(2) The estimate of the number of shares of MFS Common Stock and MFS Preferred
Stock distributed per share of Class D Stock was determined by dividing the
total number of each class of shares to be distributed by the sum of (i)
the number of shares of Class D Stock currently outstanding, (ii) in each
case, the number of shares of Class D Stock that would be issued upon
tender of the assumed number of shares of Exchangeable Stock, and (iii) the
number of shares of Class D Stock that would be issued upon exchange of all
Exchangeable Debentures.
</TABLE>
The current Class D Per Share Price is $60.25. Because a significant portion
of the current Class D Per Share Price is attributable to MFS, the Class D Per
Share Price will be significantly reduced when and if the Spin-off is
consummated. The actual Class D Per Share Price after the Spin-off will depend
upon a number of factors, including the number of shares of Class D Stock issued
in the Exchange Offer and the Company's determination of the portion of the
Class D Per Share Price attributable to MFS. The following table sets forth
PKS's estimates of (i) the pro forma Class D Per Share Price after giving effect
to the Exchange Offer and the Spin-off, (ii) the current market value of
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<PAGE>
the MFS Common Stock to be distributed in the Spin-off per share of Class D
Stock, and (iii) the redemption value of the MFS Preferred Stock to be
distributed in the Spin-off per share of Class D Stock, assuming in each case
that (x) all of the Exchangeable Debentures are exchanged for Offered Stock in
the Exchange Offer and (y) the stated number of shares of Exchangeable Stock are
exchanged for Class D Stock in the Exchange Offer.
<TABLE>
<CAPTION>
ASSUMED NUMBER ESTIMATED ESTIMATED VALUE ESTIMATED VALUE
OF SHARES OF PRO FORMA OF MFS COMMON OF MFS PREFERRED
EXCHANGEABLE CLASS D PER STOCK DISTRIBUTED STOCK DISTRIBUTED
STOCK SHARE PER SHARE OF PER SHARE OF
EXCHANGED(1) PRICE(2) CLASS D STOCK(3) CLASS D STOCK(3)
---------------- ------------- ----------------- -------------------
<S> <C> <C> <C>
3,000,000 $ 41.00 $ [ ] $ 0.66
5,000,000 $ 41.75 $ [ ] $ 0.64
<FN>
------------------------
(1) The 3,000,000 share assumption reflects PKS's estimate of the number of
shares of Exchangeable Stock likely to be tendered in the Exchange Offer,
based upon the tender indications that PKS has received from members of the
PKS Board of Directors and members of the KCG Board of Directors, and PKS's
estimates of the likely number of additional tenders. The 5,000,000 share
assumption is set forth solely to illustrate the impact of the tender of
substantially more shares than anticipated by PKS. PKS does not believe
that a tender of 5,000,000 shares is likely.
(2) Earnings of the Diversified Group for 1995, including earnings attributable
to the settlement of certain litigation described at "Recent Developments
-- Whitney Litigation," would not be reflected in the Class D Per Share
Price until 1996.
(3) For purposes of this table, each share of MFS Common Stock is valued at
$[ ], its last reported sale price on the Nasdaq National Market as
of [ ], 1995, and each share of MFS Preferred Stock is valued at its
redemption value of $1.00 per share. There is no assurance as to the market
price of the MFS Common Stock at the Spin-off Date.
</TABLE>
As shown in the above table, the greater the number of shares of
Exchangeable Stock exchanged in the Exchange Offer (i) the greater the Class D
Per Share Price and (ii) the fewer shares of Spin-off Stock to be distributed
for each share of Class D Stock, in each case after giving effect to the
Exchange Offer and the Spin-off.
THE MFS RECAPITALIZATION
One of the requirements of applicable tax law relating to the Spin-off that
are addressed by the Ruling is that, at the time of the Spin-off, PKS must own
stock possessing at least 80% of the voting power of the MFS capital stock. In
order to satisfy this requirement, PKS and KDG have agreed with MFS to effect
the MFS Recapitalization pursuant to which KDG will exchange 2,900,000 of the
42,962,658 shares of MFS Common Stock currently held by KDG for 15,000,000
shares of the MFS Preferred Stock, which is a new class of MFS convertible
preferred stock, $.01 par value. The MFS Recapitalization will be consummated
immediately prior to the Spin-off. Each share of MFS Preferred Stock will have
five votes in the election of MFS directors and in all other matters presented
to stockholders, although KDG will grant to the Secretary and the Assistant
Secretary of MFS an irrevocable proxy to vote all of the shares of MFS Preferred
Stock in proportion to the vote of the holders of MFS Common Stock on all
matters other than the election of MFS directors and matters as to which holders
of the MFS Preferred Stock vote as a separate class under Delaware corporation
law. PKS will distribute, and the holders of Class D Stock will receive, the MFS
Preferred Stock in the Spin-off subject to the terms of the irrevocable proxy.
The MFS Preferred Stock will vote together with the MFS Common Stock and the
DECS as a single class, except on certain matters as to which holders of the MFS
Preferred Stock are entitled to a class vote under Delaware corporation law. See
"Certain Transactions -- Certain Agreements Between PKS and MFS -- The
Securities Purchase Agreement" and "Description of Securities -- MFS Preferred
Stock."
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The MFS Recapitalization has been approved by the MFS Board of Directors,
and by a special committee of the MFS Board of Directors comprised solely of
independent directors of MFS. In addition, consummation of the MFS
Recapitalization is subject to the approval of the MFS Recapitalization by the
holders of MFS Common Stock at the MFS 1995 annual stockholders meeting,
presently expected to be held on [AUGUST ], 1995. In connection with obtaining
approval of the holders of MFS Common Stock, PKS has agreed to vote all of the
shares of MFS Common Stock owned or controlled by it in the same manner as the
majority of the non-PKS holders of MFS Common Stock (and not the holders of any
preferred stock of MFS which may be outstanding) present in person or by proxy
at the meeting vote. Thus, the MFS Recapitalization will be approved only if
supported by a majority of such non-PKS stockholders. If the MFS
Recapitalization is not approved by the MFS common stockholders, the MFS
Preferred Stock will not be issued, the Exchange Offer will be abandoned and the
Spin-off will not occur.
BACKGROUND AND PURPOSE OF THE SPIN-OFF; PURPOSE OF THE EXCHANGE OFFER; BOARD
PROCEEDINGS
THE 1992 AMENDMENT. In January 1992, the PKS stockholders adopted an
amendment (the "Amendment") to the PKS Certificate of Incorporation pursuant to
which each share of the Company's then-existing Class C stock was automatically
exchanged for one share of "new" Class C Stock and one share of Class D Stock,
and each share of the Company's then-existing Class B Stock was automatically
exchanged for one share of the Company's "new" Class B Stock and one share of
Class D Stock. The Amendment also provided holders of Class B Stock and Class C
Stock with the right to convert such stock into Class D Stock exercisable during
the period from and including October 15 through and including December 15 of
each year. Such conversions become effective upon, and are made on the basis of
the ratio of the Class B&C Per Share Price to the Class D Per Share Price in
effect on, January 1 of the following year. See "Description of Securities --
PKS Stock -- Conversion of Class B&C Stock into Class D Stock." Among other
things, the conversion provision provided holders of Class C Stock who are
leaving the employment of the Company, such as retirees, an opportunity to
convert Class B Stock and Class C Stock into Class D Stock as an alternative to
selling their Class B Stock or Class C Stock back to the Company.
RULING REQUEST; PRELIMINARY NEGOTIATIONS. Since the adoption of the
Amendment in 1992, MFS has undergone substantial growth. As a result, MFS has
developed needs for substantial additional amounts of capital which PKS could
not provide. MFS's growth also has resulted in an increase in the market value
of those businesses that has not been reflected fully in the Class D Formula
Value or in the Class D Per Share Price at which holders of Class D Stock can
sell their stock back to the Company pursuant to the PKS Certificate of
Incorporation. This difference has been exacerbated because of the
development-stage activities of MFS, which have generated substantial book
losses since 1992. During 1994, PKS management examined a number of alternative
transactions that could address one or more of these issues. During meetings
held during the second half of 1994, the PKS Board of Directors considered and
discussed a number of alternative transactions relating to the Diversified
Group, including the possible spin-off of the Company's equity interest in MFS
to the holders of Class D Stock, the possible spin-off of KDG, the primary
Diversified Group holding company, and the possible listing of the Class D Stock
on a national securities exchange or Nasdaq. After reviewing these alternatives,
the PKS Board concluded that a spin-off of PKS's entire equity interest in MFS
would both reduce the difference between the Class D Formula Value and the
market value of the Diversified Group businesses, and provide MFS with the
greatest flexibility to raise capital. In addition, the PKS Board determined
that a Spin-off of MFS, as opposed to other alternatives, would be less
disruptive to PKS's current capital structure. During that period, the PKS Board
also considered the possibility of an exchange offer for the purpose of
permitting the holders of Exchangeable Securities to exchange such securities
for Class D Stock prior to such a spin-off. In November 1994, the PKS Board
authorized management of the Company to prepare and file with the Internal
Revenue Service a request for a ruling that a spin-off of the Company's entire
equity interest in MFS would be tax-free to the holders of Class D Stock for
United States federal income tax purposes. The Company filed the ruling request
in December 1994.
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As noted above, the purpose of the MFS Recapitalization is to enable the
Spin-off to qualify for tax-free treatment. During the second half of 1994 and
the first half of 1995, management of MFS and management of PKS negotiated and
agreed in principle on the terms and conditions of the MFS Recapitalization,
including the condition that the MFS Recapitalization be subject to the approval
of a majority of the non-PKS holders of MFS Common Stock. Such agreement in
principle contemplated that the MFS Recapitalization would entail the surrender
by KDG of approximately 3.0 million shares of MFS Common Stock in exchange for
approximately 15.0 million to 25.0 million shares of MFS Preferred Stock.
MFS DELIBERATIONS. A special committee of the MFS Board of Directors (the
"MFS Special Committee"), comprised of Ronald W. Roskens and Michael B. Yanney,
each of whom is an independent director of MFS who does not have an interest in
either the MFS Recapitalization, the Exchange Offer or the Spin-off other than
as a stockholder of MFS, was formed to consider the agreement in principle as to
the terms of the proposed MFS Recapitalization, including the proposed terms of
the MFS Preferred Stock. The MFS Special Committee met on March 22, 1995 to
review and consider the terms of the proposed MFS Recapitalization. The MFS
Special Committee, with the assistance of Gleacher & Co., Inc., MFS's financial
advisor, and MFS's legal advisors, reviewed documentary and other information
provided by management of MFS and considered oral presentations made by Gleacher
& Co., Inc. Additional telephonic conversations were held between the MFS
Special Committee members and members of MFS management, Gleacher & Co., Inc.
and MFS's legal advisors. Subsequent to the meeting and the telephonic
conversations, the MFS Special Committee approved in principle the terms of the
MFS Recapitalization and recommended the approval of such terms of the MFS
Recapitalization to the MFS Board of Directors.
On March 29, 1995, the MFS Board of Directors met to consider the proposed
MFS Recapitalization and the proposed terms of the MFS Preferred Stock. At this
meeting, after consideration of the oral presentation by Gleacher & Co., Inc.
and the oral presentation by the MFS Special Committee on their recommendation
with respect to the MFS Recapitalization and the issuance of the MFS Preferred
Stock, the MFS Board of Directors unanimously (i) approved the proposed MFS
Recapitalization and the proposed terms of the MFS Preferred Stock, (ii)
authorized the submission of the MFS Recapitalization to the MFS stockholders
for approval and (iii) authorized management of MFS to negotiate the final terms
of the MFS Recapitalization and the MFS Preferred Stock. In addition, the MFS
Board of Directors appointed the Executive Committee of the MFS Board of
Directors to approve the specific terms of the MFS Preferred Stock, including
without limitation, dividend rate, conversion rate and certain other terms, and
to authorize the issuance of such stock to PKS to facilitate the Spin-off.
The MFS Board of Directors's deliberations with respect to the MFS
Recapitalization and the terms of the MFS Preferred Stock focused primarily upon
the benefits to be received by MFS and its stockholders from the Spin-off. In
this regard, the MFS Board of Directors concluded that the Spin-off would
benefit both MFS and its stockholders by transferring the shares of MFS Common
Stock currently concentrated in KDG's ownership to approximately 1,400 holders
of Class D Stock, thereby increasing the number of shares of MFS Common Stock
available for public trading and enhancing the liquidity of the MFS Common
Stock. In addition, the MFS Board of Directors considered that increased
liquidity of the MFS Common Stock could be expected over time to reduce the
volatility of the market price of the MFS Common Stock. The MFS Board of
Directors also concluded that the private placement of equity securities with an
acceptable strategic investor would be an attractive external financing option
for MFS, and that MFS's ability to take advantage of a strategic investment
would be enhanced by the distribution of KDG's concentrated ownership in MFS.
MFS's management has indicated to the MFS Board of Directors that it is not
desirable to use cash for all potential acquisitions, because many of MFS's
expansion opportunities will require significant amounts of cash. Instead, MFS's
management desires to be able to effect the acquisition of companies (as well as
assets and facilities) through the use of shares of MFS Common Stock whenever
that approach is more attractive. As long as MFS is a subsidiary of KDG,
however, management of
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MFS believes that the use of MFS's stock as an acquisition "currency" is
hindered due to target stockholders finding it unattractive to hold shares in an
entity that has a large controlling stockholder and a relatively small public
float. As a result, the MFS Board of Directors determined that the Spin-off
would make MFS's stock more desirable for any potential target's stockholders.
The MFS Board of Directors also considered that, following consummation of
the Spin-off, MFS and its stockholders would be better positioned to pursue a
potential combination or acquisition (if one were to be proposed in the future
on otherwise acceptable terms) which would allow for the issuance of the
acquiror's or resultant company's shares to the stockholders of MFS on a
tax-free basis to all parties. If the Spin-off were not consummated, many
acquisition or combination proposals would prove to be untenable because of
unacceptable tax consequences to PKS, whose consent would be needed for any such
transaction, or because of strategic difficulties associated with a single
stockholder owning a concentrated block of shares of the acquiror or resultant
company. A potential purchaser of MFS may conclude that these strategic
difficulties make MFS less attractive (or unattractive) as a possible
acquisition candidate, resulting in either the loss of an opportunity or a
reduced acquisition price. While in the view of the MFS Board of Directors the
primary purpose of the Spin-off is not to facilitate a sale of MFS (and MFS is
not presently pursuing any such transaction), the MFS Board of Directors
believed that the interests of the MFS's stockholders would be best served by
providing MFS and its stockholders with maximum flexibility concerning any
possible acquisition of MFS.
Finally, the MFS Board of Directors considered that the Spin-off will allow
MFS, beginning two years following consummation of the Spin-off, to be
classified as an "independent entity" for generally accepted accounting
principles, thus providing (i) MFS with the opportunity to use
pooling-of-interests accounting when undertaking business combinations and (ii)
any potential acquiror of MFS the opportunity to use pooling-of-interests
accounting in an acquisition of MFS. MFS currently does not qualify for use of
pooling-of-interests accounting because of the majority ownership by KDG. Thus,
either the combination of MFS with a company having a market value that exceeds
the value of its tangible assets or the acquisition of MFS (which has a market
value that exceeds the value of its tangible assets) would result in the
creation of significant intangible assets, including goodwill, which would have
to be amortized over time, reducing MFS's or the acquiror's, as the case may be,
future reported net earnings. MFS believes that its ability to effect business
combinations efficiently would be significantly aided if MFS were able to use
pooling accounting.
The MFS Board of Directors considered that after consummation of the
Spin-off, the holders of Class D Stock might immediately sell the shares of MFS
Common Stock received in the Spin-off, which could affect the market price of
the MFS Common Stock. In that regard, the MFS Board of Directors determined that
this risk could be lessened somewhat by the execution of agreements by certain
members of the PKS Board of Directors and MFS Board of Directors limiting their
ability to sell shares of MFS Common Stock received in the Spin-off. The MFS
Board of Directors also considered the possible effect of the Spin-off on MFS's
debt rating. Based upon conversations between management of MFS and the rating
agencies, the management of MFS advised the MFS Board of Directors that the
rating agencies would not have a negative view of the Spin-off transaction. The
MFS Board of Directors was also aware that as a result of the Spin-off, the
Noncompetition Agreement between MFS and PKS would terminate but believed that
this termination would be of no consequence to MFS. The MFS Board of Directors
determined that the advantages of the Spin-off to MFS discussed above outweighed
such potential negative effects.
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In June 1995, the management of PKS and the management of MFS agreed upon
the final terms and provisions of the MFS Preferred Stock and the MFS
Recapitalization in which KDG will exchange 2.9 million shares of MFS Common
Stock held by KDG for 15,000,000 shares of MFS Preferred Stock. See "Description
of Securities -- MFS Preferred Stock."
SPECIAL COMMITTEE OF THE PKS BOARD. By resolutions adopted by written
consent as of April 1, 1995, the PKS Board asked a special committee of the PKS
Board (the "Special Committee"), comprised of Robert B. Daugherty, Charles M.
Harper and Peter Kiewit, Jr., to review certain aspects of the MFS
Recapitalization and the Exchange Offer. The PKS Board appointed the Special
Committee to review the transactions because both the purchase of MFS Preferred
Stock and the Exchange Offer are transactions in which one or more members of
the PKS Board of Directors have an interest, either as a member of the MFS Board
of Directors or as a potential participant in the Exchange Offer. In the
resolution appointing the Special Committee, the PKS Board asked the Special
Committee (i) to review the proposed terms and conditions of the MFS
Recapitalization and the Exchange Offer for the Exchangeable Stock, and (ii) to
report to the PKS Board as to whether the terms and conditions of the MFS
Recapitalization are fair to the holders of the Class D Stock, and whether the
Exchange Offer for the Exchangeable Stock is in the best interest of the
stockholders of PKS, in each case exercising its business judgment and taking
into account in each case such facts and circumstances as it deemed appropriate.
The Special Committee met on April 7, April 17, April 28, May 19 and June 9,
1995. In connection with its review, the Special Committee, with the assistance
of its independent financial and legal advisors, reviewed documentary and other
information provided by management of the Company and met independently and with
members of management of the Company. At its May 19, 1995 meeting, the Special
Committee was given a presentation by its financial advisor, CS First Boston
Corporation ("CS First Boston"), with respect to the MFS Recapitalization, the
Exchange Offer and the Spin-off (the "Transactions") and the matters to be
addressed in CS First Boston's opinion to the PKS Board of Directors.
The PKS Board of Directors considered the Exchange Offer, the MFS
Recapitalization and the Spin-off at a special meeting on June 9, 1995 (the
"Special Meeting"). At the Special Meeting, the Special Committee reported to
the PKS Board that, based upon the documents and other information presented to
the PKS Board and the Special Committee, including (i) information relating to
the respective businesses and prospects of the Construction & Mining Group and
the Diversified Group, including historical financial information regarding the
Construction & Mining Group and the Diversified Group, pro forma financial
information reflecting the impact of the Exchange Offer and the Spin-off on the
Construction & Mining Group and the Diversified Group, 1995 financial forecasts
for the Construction & Mining Group and the Diversified Group, and information
with respect to the liabilities of and contingent exposures of the Construction
& Mining Group and the Diversified Group, (ii) the transfer of funds to the
Diversified Group with respect to the conversions of shares of Class C Stock,
(iii) the effect of conversions on the holders of Class C Stock and the holders
of Class D Stock, including the stated policy of PKS not to replace converted
shares with new grants, (iv) a preliminary version of the opinion dated July 21,
1995 of CS First Boston that, on the basis of and subject to the matters set
forth therein, the Transactions were fair, from a financial point of view, to
the stockholders of PKS, (v) the reasons for prompt action with respect to the
proposed Spin-off (as described at "PKS Board Approval," below), and (vi) the
presentations made by the management of the Company, the Special Committee
concluded that as of the date of its report it believed that in its business
judgment: (a) the terms and conditions of the MFS Recapitalization are fair to
the holders of the Class D Stock, and (b) the extension by PKS to holders of
Class B Stock and holders of Class C Stock of the Exchange Offer for the
Exchangeable Stock, when made in conjunction with the Spin-off, is in the best
interest of the stockholders of the Company. (Mr. Daugherty, the owner of 86,000
shares of MFS Common Stock abstained from voting on the MFS Recapitalization in
the Special Committee deliberations.)
PKS BOARD APPROVAL. The PKS Board approved the Exchange Offer, the MFS
Recapitalization and certain related transactions, and preliminarily approved
the Spin-off at the Special Meeting. In
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connection with its approval of the Spin-off, the PKS Board considered that the
Spin-off would be advantageous to MFS, and indirectly to the PKS stockholders
who would become stockholders of MFS as a result of the Spin-off, by enhancing
MFS's ability to meet its capital funding requirements in a cost-effective
manner and to implement its business strategy. The PKS Board also recognized
that (as discussed above under "Ruling Request; Preliminary Negotiations") the
market value of the MFS Common Stock after the Spin-off was, at the time of the
meeting, and is expected to be at the time of the Spin-off, significantly
greater than the value attributed to MFS in the determination of the Class D Per
Share Price in accordance with the PKS Certificate of Incorporation prior to the
Spin-off. The PKS Board concluded, subject to final PKS Board action shortly
prior to the date the proposed Spin-off would be effected, that the Spin-off was
in the best interest of the stockholders of PKS and should be authorized.
The PKS Board further determined that it was appropriate to provide an
opportunity to the holders of Class B Stock and Class C Stock to convert such
stock into, or exchange such stock for, Class D Stock prior to the Spin-off. The
PKS Board also concluded that consummation of the Spin-off as soon as
practicable following approval of the MFS Recapitalization by the holders of MFS
Common Stock would be in the best interest of the stockholders of PKS. Although
holders of Class B Stock and Class C Stock can next tender such stock for
conversion into Class D Stock under the PKS Certificate of Incorporation
beginning on October 15, 1995, actual conversions of such stock into Class D
Stock would not occur until January 1996, and the final calculations of the
amount of Class D Stock issuable in such conversions would not be completed
until March or April of 1996. As noted above, a primary purpose of the Spin-off
is to provide MFS with flexibility to raise substantial amounts of capital as
quickly and as efficiently as possible so that MFS can compete in its growing
and changing areas of business. The PKS Board concluded that delay of the
Spin-off until March or April of 1996 would unnecessarily restrict and encumber
MFS's capital-raising activities and would hamper MFS's ability to use MFS
Common Stock to make acquisitions during the next year. Furthermore, the PKS
Board concluded that a substantial delay of the Spin-off would present both PKS
and MFS with uncertainty of operation, administrative confusion and employee
distraction. Accordingly, the PKS Board authorized the Exchange Offer as an
appropriate means of providing holders of Class B Stock and Class C Stock with
the desired opportunity to exchange such stock for Class D Stock without
deferring the Spin-off until March or April of 1996.
The PKS Board also determined that the appropriate ratio for such exchanges
would be the ratio applicable to January 1995 conversions of Class B Stock and
Class C Stock into Class D Stock (I.E., $60.25 to $26.00 or 1:.431535) as
adjusted for the dividends paid on the Class B Stock and the Class C Stock in
January 1995 of $.45 per share and in May 1995 of $.45 per share (yielding a
ratio of $60.25 to $25.10 or 1: .416598). Accordingly, the PKS Board authorized
an exchange ratio of .416598 of a share of Class D Stock for each share of Class
B Stock or Class C Stock tendered pursuant to the Exchange Offer.
The Spin-off will result in the distribution to holders of Class D Stock of
a unique asset which represents a substantial portion of the value of the assets
comprising the Class D Formula Value. The PKS Board accordingly concluded that
holders of Exchangeable Debentures (which are convertible in whole or in part
into Class D Stock) should be afforded an opportunity to participate in the
Spin-off, and determined that the Exchange Offer for the Exchangeable Debentures
was the most appropriate way to permit holders of Exchangeable Debentures to so
participate.
OPINIONS OF FINANCIAL ADVISORS. In connection with the MFS
Recapitalization, the Exchange Offer and the Spin-off, the PKS Board has
received fairness opinions from both Lehman Brothers Inc. ("Lehman Brothers")
and from CS First Boston. PKS management retained Lehman Brothers in February of
1995 to provide PKS management with advice, assistance and analysis concerning
the MFS Recapitalization, the Exchange Offer and the Spin-off. Following the
formation of the Special Committee in April of 1995, the Special Committee
retained CS First Boston to provide the Special Committee with independent
financial advice and analysis regarding the matters which were the
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subject of the Special Committee's review. Prior to its consideration of the MFS
Recapitalization, the Exchange Offer and the Spin-off at the Special Meeting,
the PKS Board asked both firms to provide it with fairness opinions regarding
the transactions.
The PKS Board has received an opinion from CS First Boston dated June 9,
1995 that, as of that date and on the basis of and subject to the matters set
forth therein, the Transactions were fair from a financial point of view to the
stockholders of PKS. CS First Boston subsequently rendered an opinion dated July
21, 1995 to the PKS Board that, as of that date and on the basis of and subject
to the matters set forth therein, the Transactions were fair from a financial
point of view to the stockholders of PKS.
THE FULL TEXT OF THE OPINION OF CS FIRST BOSTON DATED JULY 21, 1995, WHICH
SETS FORTH THE ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITS ON THE REVIEW
UNDERTAKEN BY CS FIRST BOSTON, IS ATTACHED AS ANNEX I TO THIS PROSPECTUS. THE
JUNE 9, 1995 OPINION IS SUBSTANTIALLY IDENTICAL TO THE OPINION ATTACHED HERETO.
THE SUMMARY OF THE CS FIRST BOSTON OPINION SET FORTH HEREIN IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO THE FULL TEXT OF SUCH OPINION, AND HOLDERS OF
EXCHANGEABLE SECURITIES AND HOLDERS OF CLASS D STOCK ARE URGED TO READ SUCH
OPINION IN ITS ENTIRETY.
In arriving at its opinion, CS First Boston reviewed certain publicly
available business and financial information relating to PKS, KCG, KDG and MFS,
a draft dated July 11, 1995 of this Prospectus, a draft dated June 2, 1995 of
the Certificate of Designation for the MFS Preferred Stock and certain other
information, including financial forecasts and pro forma financial statements,
provided to it by PKS, KCG, KDG and MFS, and met with the managements of PKS,
KCG, KDG and MFS to discuss the businesses and prospects of PKS, KCG, KDG and
MFS, as well as the terms of the Transactions. CS First Boston also considered
certain financial and stock market data of MFS and compared that data with
similar data for other publicly held companies in businesses similar to those of
MFS. In addition, CS First Boston compared the financial terms of the MFS
Preferred Stock with the financial terms of other securities and considered such
other information, financial studies, analyses and investigations and financial,
economic and market criteria that it deemed relevant. CS First Boston also
analyzed the financial benefits that will be afforded the holders of Class D
Stock as a result of the Spin-off and considered the fact that the holders of
Class B Stock and Class C Stock will be given the opportunity, as a result of
the Exchange Offer, to exchange their shares of Class B Stock and Class C Stock
for shares of Class D Stock prior to consummation of the Spin-off and thereby to
participate in the financial benefits of the Spin-off. No limitations were
imposed by the Special Committee or the PKS Board upon CS First Boston with
respect to the investigations made or procedures followed by it in rendering its
opinion.
In connection with its review, CS First Boston did not assume any
responsibility for independent verification of any of the foregoing information
(including the information contained in the draft Prospectus) and relied on such
information being complete and accurate in all material respects. With respect
to the financial forecasts, CS First Boston assumed that they were reasonably
prepared on bases reflecting the best currently available estimates and
judgments of the managements of each of PKS, KCG, KDG and MFS as to the future
financial performance of each of PKS, KCG, KDG and MFS, respectively. In
addition, CS First Boston did not make an independent evaluation or appraisal of
the assets or liabilities (contingent or otherwise) of any of PKS, KCG, KDG or
MFS, nor was it furnished with any such evaluations or appraisals.
In arriving at its opinion, CS First Boston relied upon the advice of PKS
that the Spin-off will be consummated only if it can be effected on a tax-free
basis, that the Spin-off will qualify as a tax-free spin-off under Section 355
of the Internal Revenue Code of 1986, as amended, and that PKS has determined
that the MFS Recapitalization is the most feasible method of facilitating the
Spin-off on a tax-free basis. In addition, CS First Boston relied upon the
advice of PKS that PKS and MFS will take all action necessary to ensure that the
MFS Common Stock and the MFS Preferred Stock to be received by the holders of
Class D Stock in the Spin-off will not be "restricted securities" within the
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meaning of Rule 144(a)(3) promulgated under the Securities Act and will not be
subject to restrictions on transfer under the Securities Act (other than
restrictions imposed as a result of the holder being an "affiliate" (within the
meaning of rule 144(a)(1) under the Securities Act) of MFS.
For purposes of its opinion, CS First Boston assumed that less than an
aggregate of 6,000,000 shares of Class B Stock and Class C Stock will be
exchanged for Class D Stock in the Exchange Offer. CS First Boston also assumed
that PKS will complete the Spin-off as described in the draft dated July 11,
1995 of this Prospectus and that the consummation of the Transactions will not
result in any default or similar event under any loan agreement, instrument of
indebtedness or other contract of PKS, KCG, KDG or MFS which will not be waived.
CS First Boston's opinion was necessarily based upon financial, economic, market
and other conditions as they existed and could be evaluated on the date of such
opinion.
The opinion of CS First Boston does not address or constitute a
recommendation regarding (i) the business decisions of PKS or MFS to effect the
MFS Recapitalization or the Spin-off or to make the Exchange Offer, (ii) the
determination by PKS of the exchange ratio of Exchangeable Stock to Offered
Stock or the other terms and conditions of the Exchange Offer, or (iii) the
business decisions of PKS to effect, or the financial impact on PKS or any of
its stockholders of, certain other transactions in connection with the MFS
Recapitalization, the Exchange Offer and the Spin-off. CS FIRST BOSTON'S OPINION
IS DIRECTED ONLY TO THE FAIRNESS TO THE STOCKHOLDERS OF PKS OF THE FINANCIAL
TERMS OF THE TRANSACTIONS, AND DOES NOT CONSTITUTE A RECOMMENDATION TO ANY
HOLDER OF EXCHANGEABLE SECURITIES AS TO WHETHER SUCH HOLDER SHOULD PARTICIPATE
IN THE EXCHANGE OFFER.
The CS First Boston opinion also expresses no opinion as to the market value
of the MFS Preferred Stock upon issuance or the prices at which the MFS Common
Stock or the MFS Preferred Stock will trade subsequent to the consummation of
the MFS Recapitalization or the Spin-off. The actual market value of the MFS
Common Stock and the MFS Preferred Stock may vary depending upon changes in
interest rates, dividend rates, market conditions, general economic conditions
and other factors which generally influence the price of securities.
CS First Boston did not participate in the determination by PKS and MFS of
the terms of the MFS Recapitalization, the Exchange Offer or the Spin-off or the
terms of the MFS Preferred Stock and has not been asked to consider alternative
means of effecting a distribution of the MFS Common Stock or the MFS Preferred
Stock to the holders of Class D Stock.
The following is a summary of certain financial analyses performed by CS
First Boston in connection with its opinion dated June 9, 1995, which it
discussed with the Special Committee and the PKS Board. In connection with its
opinion dated July 21, 1995, CS First Boston performed certain procedures,
including each of the financial analyses described below, to update its analyses
made in connection with its opinion dated June 9, 1995, and reviewed with the
managements of PKS, KCG, KDG and MFS the assumptions on which such analyses were
based and other factors, including current financial results of PKS, KCG, KDG
and MFS and their respective future prospects, and PKS's current assessment of
the likely timing of the consummation of the Transactions. The results of such
analyses were substantially the same as those arrived at in connection with the
CS First Boston opinion dated June 9, 1995. CS First Boston believes that its
analyses must be considered as a whole and that selecting portions of such
analyses or any of the factors considered, without considering all such analyses
and factors, could create an incomplete view of the process underlying its
analyses and opinion. The preparation of a fairness opinion is a complex process
and is not susceptible to partial analysis or summary description.
In connection with the delivery of its opinion, CS First Boston presented to
the Special Committee and the PKS Board (a) a comparison of the Class D Per
Share Price with the sum of (i) the estimated post-Spin-off Class D Per Share
Price and (ii) the implied market value of the MFS Common Stock and the MFS
Preferred Stock estimated to be received in the Spin-off for each share of Class
D Stock (based on the May 15, 1995 closing price of MFS Common Stock); (b) a
comparison of the Class B&C Per Share Price with the sum of (i) the estimated
post-Spin-off Class D Per Share Price
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multiplied by the number of shares of Class D Stock to be received for each
share of Class B Stock or Class C Stock exchanged in the Exchange Offer and (ii)
the implied market value of the MFS Common Stock and the MFS Preferred Stock
estimated to be received in the Spin-off for each share of Class B Stock or
Class C Stock exchanged for Class D Stock in the Exchange Offer (based on the
May 15, 1995 closing price of MFS Common Stock); and (c) an analysis of the
projected dilution of the Class D Stock as a result of exchanges of Exchangeable
Securities in the Exchange Offer. CS First Boston performed such analyses (x)
assuming exchange ratios for exchanges of Class B Stock and Class C Stock for
Class D Stock in the Exchange Offer (I) equal to the exchange ratio used in the
Exchange Offer and (II) based on the ratio projected by PKS to be applicable to
January 1996 conversions of Class B Stock and Class C Stock into Class D Stock
pursuant to PKS's Certificate of Incorporation and (y) assuming scenarios in
which no shares of Class B Stock and Class C Stock are exchanged in the Exchange
Offer, in which an aggregate of 3,000,000 such shares are exchanged, and in
which an aggregate of 6,000,000 such shares are exchanged.
In addition, CS First Boston presented to the Special Committee and the PKS
Board (a) its views regarding the potential for increases in the trading volume
of MFS Common Stock after consummation of the Spin-off as a result of the
increased public float and greater liquidity of MFS Common Stock and increased
access for MFS to the public and private capital markets; (b) an analysis of the
holding period required before the Class B&C Per Share Price would equal the sum
of (i) the post-Spin-off Class D Per Share Price multiplied by the number of
shares of the Class D Stock to be received for each share of Class B Stock or
Class C Stock exchanged in the Exchange Offer and (ii) the market value of the
MFS Common Stock and the MFS Preferred Stock to be received in the Spin-off for
each share of Class B Stock or Class C Stock exchanged for Class D Stock in the
Exchange Offer (based upon various assumed annual growth rates for the Class B&C
Per Share Price and the Class D Per Share Price and MFS Common Stock); (c) a
calculation of certain financial benefits to the non-PKS holders of MFS Common
Stock in the MFS Recapitalization (based on the May 15, 1995 closing price of
MFS Common Stock and the face value of the MFS Preferred Stock); (d) a
calculation of potential federal income tax consequences to PKS if the Spin-off
were structured as a taxable transaction for PKS for United States federal
income tax purposes (based on the estimated amount of the capital gains tax that
could potentially be payable by PKS if its holdings of securities of MFS were
distributed in a taxable transaction); and (e) an analysis of the pro forma
effects of the Transactions on the balance sheet of each KCG and KDG, based upon
information provided by management of PKS.
CS First Boston is a nationally recognized investment banking firm and is
actively engaged in the valuation of businesses and their securities in
connection with mergers and acquisitions, leveraged buyouts, negotiated
underwritings, secondary distributions of listed and unlisted securities,
private placements and valuations for estate, corporate and other purposes. The
Special Committee selected CS First Boston as its financial advisor because it
is a nationally recognized investment banking firm and because of CS First
Boston's expertise and independence. CS First Boston has rendered from time to
time various investment banking services to PKS and received customary fees for
such services.
Pursuant to the terms of an engagement letter dated April 7, 1995, PKS has
paid CS First Boston a fee of $400,000 for providing an opinion to the PKS Board
of Directors, $100,000 of which became payable upon execution of the engagement
letter and the remainder of which became payable upon delivery of such opinion.
PKS has also agreed to reimburse CS First Boston for its reasonable out-of-
pocket expenses, including all reasonable fees and disbursements of counsel, and
to indemnify CS First Boston and certain related persons against certain
liabilities relating to or arising out of its engagement. In the ordinary course
of its business, CS First Boston and its affiliates may actively trade the debt
and equity securities of MFS for its own account and for the accounts of
customers and, accordingly, may at any time hold a long or short position in
such securities.
In addition, the PKS Board has received an opinion from Lehman Brothers,
financial advisor to PKS, dated June 9, 1995 that, based upon and subject to the
assumptions and qualifications set forth in such opinion, the MFS
Recapitalization, the Exchange Offer for Exchangeable Stock and the Spin-off,
taken as a whole, are fair from a financial point of view to the stockholders of
PKS. Lehman
40
<PAGE>
Brothers subsequently rendered an opinion dated July 21, 1995 to the PKS Board
that, based upon and subject to the assumptions and qualifications set forth in
such opinion, the MFS Recapitalization, the Exchange Offer for Exchangeable
Stock and the Spin-off, taken as a whole, are fair from a financial point of
view to the stockholders of PKS.
THE FULL TEXT OF THE OPINION OF LEHMAN BROTHERS DATED JULY 21, 1995, WHICH
SETS FORTH ASSUMPTIONS MADE, MATTERS CONSIDERED AND LIMITS ON THE REVIEW
UNDERTAKEN BY LEHMAN BROTHERS, IS ATTACHED AS ANNEX II TO THIS PROSPECTUS. THE
JUNE 9, 1995 OPINION IS SUBSTANTIALLY IDENTICAL TO THE OPINION ATTACHED HERETO.
The summary of the Lehman Brothers opinion set forth herein is qualified in
its entirety by reference to the full text of such opinion, and holders of
Exchangeable Securities and holders of Class D Stock are urged to read such
opinion in its entirety. Lehman Brothers has not been asked to consider
alternative means of effecting a distribution of the MFS Common Stock or the MFS
Preferred Stock to the holders of Class D Stock. The Lehman Brothers opinion is
directed only to the fairness to the stockholders of PKS of the financial terms
of the transactions covered by the opinion, and does not constitute a
recommendation to any holder of Exchangeable Securities as to whether such
holder should participate in the Exchange Offer.
In arriving at its opinion, Lehman Brothers reviewed and analyzed (i) a
draft of this Prospectus, (ii) such publicly available information concerning
MFS which it believed to be relevant to its inquiry, including MFS's Form 10-K
for the fiscal year ended December 31, 1994 and MFS's annual report for such
fiscal year, (iii) financial and operating information with respect to the
business, operations and prospects of MFS and PKS furnished to Lehman Brothers
by PKS, (iv) a comparison of the historical financial results and present
financial condition of MFS and PKS with those of other companies which it deemed
relevant, (v) a trading history of the MFS Common Stock from May 1993 to the
date of such opinion and a comparison of that trading history with those of
other companies which it deemed relevant, (vi) a comparison of the financial
terms of the MFS Preferred Stock with the terms of certain other transactions
and securities which it deemed relevant and (vii) KDG's tax bases of its equity
interests in MFS and, based upon the advice of PKS and its tax advisors, the
likely tax impact of various disposition strategies with respect to the equity
interests in MFS or its underlying assets and the proposed tax and financial
reporting treatment of the Spin-off. In addition, Lehman Brothers had
discussions with the managements of each of PKS and MFS concerning their
respective businesses, operations, assets, financial condition and prospects and
undertook such other studies, analyses and investigations as it deemed
appropriate. No limitations were imposed by the PKS Board upon Lehman Brothers
with respect to the investigations made or procedures followed by it in
rendering its opinion.
In arriving at its opinion, Lehman Brothers assumed and relied upon the
accuracy and completeness of the financial and other information used by it
without assuming any responsibility for independent verification of such
information and has further relied upon the assurances of the managements of PKS
and MFS that they are not aware of any facts that would make such information
inaccurate or misleading. With respect to the financial forecasts of PKS and
MFS, Lehman Brothers has assumed that they have been reasonably prepared on
bases reflecting the best currently available estimates and judgments of the
managements of PKS and MFS as to the future financial performance of PKS and
MFS, respectively. In addition, Lehman Brothers has not made an independent
evaluation or appraisal of the assets or liabilities (contingent or otherwise)
of PKS or MFS, nor was it furnished with any such evaluations or appraisals.
Lehman Brothers has assumed that the consummation of the Exchange Offer and the
Spin-off will not result in any default or similar event under any loan
agreement, instrument of indebtedness or other contract of PKS or MFS which will
not be waived and that no more than 6,000,000 shares of Exchangeable Stock will
be exchanged for shares of Class D Stock in the Exchange Offer. The opinion of
Lehman Brothers is based upon financial, market, economic and other conditions,
and upon tax laws, accounting standards and legal and regulatory requirements,
as they existed on, and could be evaluated as of, July 21, 1995 and, with the
consent of PKS, Lehman Brothers has not considered possible changes in such
applicable tax laws, accounting standards or regulatory and legal requirements.
41
<PAGE>
In arriving at its opinion, Lehman Brothers has also relied upon the advice
of PKS and its tax advisors that the Exchange Offer and the Spin-off, and in
particular the MFS Recapitalization, are the most feasible methods of ensuring
that the Spin-off will qualify as a tax-free spin-off for United States federal
income tax purposes. In addition, Lehman Brothers has further relied upon the
advice of PKS and its legal advisors that the shares of MFS Common Stock to be
received by holders of Class D Stock in the Spin-off (other than shares received
by persons who are "affiliates" of MFS under the federal securities laws) will
be freely tradeable securities.
The following is a summary of certain factors reviewed and considered by
Lehman Brothers in connection with its opinion dated July 21, 1995. The
preparation of a fairness opinion involves various determinations as to the most
appropriate and relevant considerations and the application of the factors
reviewed and considered to the particular circumstances and, therefore, such an
opinion is not readily susceptible to summary description. Furthermore, in
arriving at its fairness opinion, Lehman Brothers did not attribute any
particular weight to any factor considered by it, but rather made qualitative
judgments as to the significance and relevance of each factor. Accordingly,
Lehman Brothers believes that the factors and considerations supporting its
opinion must be taken as a whole and that considering any portion of such
factors, without considering all factors, could create a misleading or
incomplete view of the process underlying its opinion. In its review and
consideration, Lehman Brothers made numerous assumptions with respect to
industry performance, general business and economic conditions and other
matters, many of which are beyond the control of the Company.
In connection with its opinion, Lehman Brothers considered (a) a comparison
of the Class D Per Share Price with the sum of (i) the estimated post-Spin-off
Class D Per Share Price and (ii) the implied market value of the MFS Common
Stock and the MFS Preferred Stock estimated to be received in the Spin-off for
each share of Class D Stock (based on the market price of MFS Common Stock
prevailing at the time Lehman Brothers conducted its review); (b) a comparison
of the Class B&C Per Share Price with the sum of (i) the estimated post-Spin-off
Class D Per Share Price multiplied by the number of shares of Class D Stock to
be received for each share of Class B Stock or Class C Stock exchanged in the
Exchange Offer and (ii) the implied market value of the MFS Common Stock and the
MFS Preferred Stock estimated to be received in the Spin-off for each share of
Class B Stock or Class C Stock exchanged for Class D Stock in the Exchange Offer
(based on the market price of MFS Common Stock prevailing at the time Lehman
Brothers conducted its review); and (c) an analysis of the projected dilution of
the Class D Stock as a result of exchanges of Exchangeable Securities in the
Exchange Offer. Lehman Brothers performed such analyses assuming scenarios in
which an aggregate of 3,000,000 shares of Class B Stock and Class C Stock are
exchanged, and in which an aggregate of 6,000,000 shares of Class B Stock and
Class C Stock are exchanged.
In addition, Lehman Brothers considered (a) the benefits to the non-PKS
holders of MFS Common Stock in the MFS Recapitalization; (b) the federal income
tax consequences to PKS if the Spin-off were structured as a taxable transaction
for PKS for United States federal income tax purposes (based on the estimated
amount of the capital gains tax that could potentially be payable by PKS if its
holdings of securities of MFS were distributed in a taxable transaction); and
(c) the pro forma effects of the MFS Recapitalization, the Exchange Offer for
Exchangeable Stock and the Spin-off, taken as a whole, on the balance sheet of
each of KCG and KDG, based upon information provided by management of PKS.
The PKS Board retained Lehman Brothers based upon its expertise and
experience. Lehman Brothers is a nationally recognized investment banking and
advisory firm. Lehman Brothers, as part of its investment banking business, is
continuously engaged in the valuation of businesses and securities in connection
with mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for estate, corporate and other purposes. In the past, Lehman
Brothers has provided financial advisory and financing services to PKS and has
received customary fees for the rendering of such services.
Pursuant to the terms of an engagement letter dated April 21, 1995, PKS has
paid Lehman Brothers a fee of $400,000 for services rendered in connection with
its opinion to the PKS Board of
42
<PAGE>
Directors. PKS has also agreed to reimburse Lehman Brothers for its reasonable
expenses, including professional and legal fees and disbursements of counsel,
and to indemnify Lehman Brothers and certain related persons against certain
liabilities in connection with or arising out of its engagement. In the ordinary
course of its business, Lehman Brothers and its affiliates may actively trade
the debt and equity securities of MFS for its own account and for the accounts
of customers and, accordingly, may at any time hold a long or short position in
such securities.
Both the opinion of CS First Boston and the opinion of Lehman Brothers
assume that less than an aggregate of 6,000,000 shares of Class B Stock and
Class C Stock will be exchanged for Class D Stock in the Exchange Offer. This
assumption derives from an understanding between PKS and the primary bonding
company for the Construction & Mining Group. That understanding provides that
the bonding company is willing to provide bonds to support a construction
backlog of up to $3.3 billion if PKS will not permit the Construction & Mining
Group to pay dividends, redeem stock, make distributions or take other action
that would reduce the consolidated net worth of the Construction & Mining Group
below $315 million. If more than 6,000,000 shares of Class B Stock and Class C
Stock were tendered and accepted in the Exchange Offer, and if PKS were to
transfer the corresponding funds from the Construction & Mining Group to the
Diversified Group, as described at "Risk Factors -- Risk Factors Relating to the
Exchange Offer, the Spin-off and PKS Securities -- Transfer from Construction &
Mining Group," the consolidated net worth of KCG (which was $505 million at the
end of 1994) might begin to approach the $315 million floor. In that event, PKS
would consider (i) placing a limit on the number of shares of Class B Stock and
Class C Stock accepted for exchange, so that exchanges and funds transfers would
not reduce KCG's consolidated net worth below the $315 million floor, (ii)
performing an analysis to determine whether 1995 Construction & Mining Group
earnings would provide additional net worth sufficient to support current
backlog, and/or (iii) restructuring its arrangement with the bonding company.
PKS believes that a tender of 6,000,000 or more shares of Exchangeable Stock is
highly unlikely.
The PKS Board of Directors intends to request "bring-down" fairness opinions
from each of CS First Boston and Lehman Brothers confirming their prior opinions
as of the Spin-off Date, as well as a final report from the Special Committee as
of such date.
PARTICIPATION IN THE EXCHANGE OFFER. With certain exceptions, including
Messrs. Walter Scott, Jr., and Robert Julian, the directors of PKS and of KCG
have advised PKS in writing that they will not tender in the Exchange Offer any
shares of Class C Stock held by them. Messrs. Scott and Julian expect to tender,
in the aggregate, 785,892 shares of Class C Stock pursuant to the Exchange
Offer. See "Certain Transactions -- Intentions of Certain Significant
Stockholders Regarding Participation in Exchange Offer."
PARTICIPATION IN THE EXCHANGE OFFER IS VOLUNTARY. SEE "RISK FACTORS" FOR A
DESCRIPTION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BEFORE A HOLDER OF
EXCHANGEABLE SECURITIES DECIDES WHETHER TO PARTICIPATE IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS RECOMMENDS THAT HOLDERS OF EXCHANGEABLE DEBENTURES
TENDER SUCH EXCHANGEABLE DEBENTURES IN THE EXCHANGE OFFER.
THE PKS BOARD OF DIRECTORS MAKES NO RECOMMENDATIONS WITH RESPECT TO WHETHER
HOLDERS OF EXCHANGEABLE STOCK SHOULD TENDER SUCH EXCHANGEABLE STOCK IN THE
EXCHANGE OFFER.
ABANDONMENT OR MODIFICATION OF TRANSACTIONS
PKS reserves the right in its sole discretion to abandon or modify the terms
of the Exchange Offer or the Spin-off or both, and PKS will abandon the Exchange
Offer if it abandons the Spin-off. Thus, there is no assurance that either the
Exchange Offer or the Spin-off will be consummated or, if consummated, will be
consummated on the terms described herein. However, if the Exchange Offer is
consummated, the Spin-off will be consummated promptly thereafter. See "The
Exchange Offer -- Right of PKS to Extend, Abandon or Modify the Exchange Offer
or Defer Acceptance of Tendered Exchangeable Securities" and "The Spin-off --
Conditions to Spin-off; Right of PKS to Abandon, Defer or Modify the Spin-off."
43
<PAGE>
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA OF
PETER KIEWIT SONS', INC., KIEWIT CONSTRUCTION & MINING GROUP AND
KIEWIT DIVERSIFIED GROUP
The following selected historical and pro forma financial data of PKS,
Kiewit Construction & Mining Group and Kiewit Diversified Group should be read
in conjunction with PKS's, Kiewit Construction & Mining Group's and Kiewit
Diversified Group's historical financial statements and the notes thereto and
the pro forma financial information and the notes thereto included elsewhere
herein or incorporated herein by reference.
The selected historical financial data for each of the years in the period
1990 to 1994 have been derived from audited historical financial statements. The
selected historical financial data for the three months ended March 31, 1994 and
1995, and as of March 31, 1995, have been derived from unaudited financial
statements. In the opinion of management, such unaudited financial statements
reflect all adjustments, consisting only of normal recurring accruals, necessary
to present fairly the financial position of PKS, Kiewit Construction & Mining
Group and Kiewit Diversified Group at March 31, 1995 and the results of
operations for the three months ended March 31, 1994 and 1995. The results of
operations for the three months ended March 31, 1995 are not necessarily
indicative of the results that may be expected for the entire 1995 fiscal year.
The pro forma results of operations data for the three months ended March
31, 1995 of PKS, Kiewit Construction & Mining Group and Kiewit Diversified
Group, respectively, assume that the MFS Recapitalization, the Exchange Offer
and the Spin-off were consummated on January 1, 1995. The pro forma results of
operations data for the year ended December 31, 1994 of PKS, Kiewit Construction
& Mining Group and Kiewit Diversified Group, respectively, assume that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993. The pro forma financial position data of PKS and each Group
as of March 31, 1995, assume that such transactions were consummated as of such
date. The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of Exchangeable
Stock and all the Exchangeable Debentures are exchanged in the Exchange Offer.
Scenario 1 reflects PKS's estimate of the number of shares of Exchangeable Stock
likely to be tendered in the Exchange Offer, based upon the tender indications
that PKS has received from members of the PKS Board of Directors and members of
the KCG Board of Directors, and PKS's estimates of the likely number of
additional tenders. Scenario 2 is set forth solely to illustrate the impact of
the tender of substantially more shares than anticipated by PKS. PKS does not
believe that a tender of 5,000,000 shares is likely.
The pro forma financial information is not intended to reflect the results
of operations or the financial position of PKS, Kiewit Construction & Mining
Group or Kiewit Diversified Group which actually would have resulted had the MFS
Recapitalization, the Exchange Offer and the Spin-off been effective on the
dates indicated. Moreover, the pro forma information is not intended to be
indicative of future results of operations or financial position of PKS, Kiewit
Construction & Mining Group or Kiewit Diversified Group.
44
<PAGE>
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA OF
PETER KIEWIT SONS', INC.
<TABLE>
<CAPTION>
PRO FORMA (1)
-----------------------------------------
HISTORICAL
------------------------------------------------------ YEAR ENDED DECEMBER THREE MONTHS
THREE MONTHS ENDED MARCH 31,
ENDED MARCH 31, 1994 1995
FISCAL YEAR ENDED 31, ------------------- -------------------
-------------------------------------- -------------- SCENARIO SCENARIO SCENARIO SCENARIO
1990 1991 1992 1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
------ ------ ------ ------ ------ ------ ------ -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
RESULTS OF OPERATION:
Revenue (3)................. $1,917 $2,086 $2,027 $2,191 $2,991 $ 573 $ 681 $2,704 $2,704 $ 563 $ 563
Earnings (loss) from
continuing operations
before cumulative effect of
change in accounting
principle (4).............. 108 49 150 261 110 23 (26) 177 177 14 14
Net earnings (loss) (4)..... 80 441 181 261 110 23 (26) 177 177 14 14
FINANCIAL POSITION:
Total Assets (3)............ 2,966 2,632 2,549 3,634 4,504 4,449 2,894 2,894
Current portion of long-term
debt (3)................... 31 15 3 15 33 33 13 13
Long-term debt, less current
portion (3)................ 269 110 30 462 908 929 366 366
Stockholders' equity (5).... 1,185 1,396 1,458 1,671 1,736 1,720 1,325 1,325
<FN>
------------------------------
(1) The pro forma results of operations data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1, 1995 for the fiscal year ended December
31, 1995 and three months ended March 31, 1995, respectively. The pro forma
financial position data as of March 31, 1995 assumes that such transactions
were consummated as of such date. The pro forma financial data of PKS
should be read in conjunction with PKS' historical consolidated financial
statements and the notes thereto and the "Pro Forma Financial Information"
included elsewhere or incorporated by reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer.
(3) In October 1993, PKS acquired 35% of the outstanding shares of C-TEC
Corporation that have 57% of the available voting rights. In December 1994,
PKS increased its ownership in C-TEC to 49% and 58% of the outstanding
shares and voting rights, respectively. In January 1994, MFS, a subsidiary
of PKS, issued $500 million of 9.375% Senior Discount Notes.
(4) In 1993, through two public offerings, PKS sold 29% of the common stock of
MFS, resulting in a $137 million after-tax gain. In 1994, additional MFS
stock transactions resulted in a $35 million after-tax gain to PKS and
reduced its ownership in MFS to 67%.
(5) The aggregate redemption value of common stock at March 31, 1995 was $1.6
billion.
</TABLE>
45
<PAGE>
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA OF
KIEWIT CONSTRUCTION & MINING GROUP
<TABLE>
<CAPTION>
PRO FORMA (1)
-----------------------------------------
HISTORICAL FISCAL YEAR THREE MONTHS
------------------------------------------------------ ENDED ENDED
THREE MONTHS DECEMBER 31, MARCH 31,
ENDED 1994 1995
FISCAL YEAR ENDED MARCH 31, ------------------- -------------------
-------------------------------------- -------------- SCENARIO SCENARIO SCENARIO SCENARIO
1990 1991 1992 1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
------ ------ ------ ------ ------ ------ ------ -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Results of Operations:
Revenue..................... $1,671 $1,834 $1,675 $1,783 $2,175 $ 411 $ 426 $2,175 $2,175 $ 426 $ 426
Earnings (loss) before
cumulative effect of change
in accounting principle.... 57 23 69 80 77 (2) (2) 75 74 (3) (3)
Net earnings (loss)......... 57 23 82 80 77 (2) (2) 75 74 (3) (3)
Per Common Share (3):
Earnings (loss) before
cumulative effect of change
in accounting principle.... 2.47 1.12 3.79 4.63 4.92 (0.14) (0.16) 5.88 6.84 (0.26) (0.37)
Net earnings (loss)......... 2.47 1.12 4.48 4.63 4.92 (0.14) (0.16) 5.88 6.84 (0.26) (0.37)
Dividends (4)(5)............ 0.25 0.30 0.70 0.70 0.90 -- -- -- -- -- --
Stock price (6)............. 10.35 14.40 18.70 22.35 25.55 22.35 25.55 25.45 25.45
Book value.................. 14.99 19.25 23.31 27.43 31.39 27.72 32.25 33.97 35.86
Financial Position:
Total assets................ 762 849 862 889 967 896 819 768
Current portion of long-term
debt....................... 15 7 2 4 3 2 2 2
Long-term debt, less current
portion.................... 14 13 12 10 9 7 6 6
Stockholders' equity (7).... 350 400 437 480 505 448 372 321
Formula value (6)........... 249 299 351 391 411
<FN>
------------------------------
(1) The pro forma results of operations data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1, 1995 for the fiscal year ended December
31, 1994 and three months ended March 31, 1995, respectively. The pro forma
financial position data as of March 31, 1995 assumes that such transactions
were consummated as of such date. The pro forma financial data of Kiewit
Construction & Mining Group should be read in conjunction with the Kiewit
Construction & Mining Group's historical financial statements and the notes
thereto and the "Pro Forma Financial Information" included elsewhere or
incorporated by reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer.
(3) In connection with the January 8, 1992 reorganization, each share of the
previous Class B and Class C Stock was exchanged for one share of new Class
B Stock or Class C Stock and one share of new Class D Stock. Therefore, for
purposes of computing Class B and Class C Stock per share data, the number
of shares for years 1990 and 1991 are assumed to be the same as the
corresponding number of shares of previous Class B and Class C Stock. Fully
diluted earnings per share have not been presented because it is not
materially different from primary earnings per share.
(4) The 1994, 1993 and 1992 dividends include $.45, $.40 and $.30 for dividends
declared in 1994, 1993 and 1992, respectively, but paid in January of the
subsequent year. Years 1990 and 1991 reflect dividends paid by PKS on its
previous Class B and Class C Stock that have been attributed to Kiewit
Construction & Mining Group and Kiewit Diversified Group based upon the
relative formula values of each group which were determined at the end of
each preceding year. Accordingly, the dividends may bear no relationship to
the dividends that would have been declared by the Board in such years had
the new Class B and Class C Stock and the new Class D Stock been
outstanding.
(5) Pro forma dividends have not been presented as the amount of any dividends
that may have been declared if the transactions had occurred as of the
beginning of the respective periods cannot be determined.
(6) Pursuant to the Certificate of Incorporation, the stock price and formula
value calculations are computed annually at the end of the fiscal year,
except that adjustments to the stock price to reflect dividends are made at
the time such dividends are declared.
(7) Ownership of the Class B Stock and Class C Stock is restricted to certain
employees conditioned upon the execution of repurchase agreements which
restrict the employees from transferring the stock. PKS is generally
committed to purchase all Class B and Class C Stock at the price
determined, when put to PKS by a stockholder, pursuant to the Certificate
of Incorporation. The aggregate redemption value of the Class B and Class C
Stock at March 31, 1995 was $355 million.
</TABLE>
46
<PAGE>
SELECTED HISTORICAL AND PRO FORMA FINANCIAL DATA OF
KIEWIT DIVERSIFIED GROUP
<TABLE>
<CAPTION>
PRO FORMA (1)
-----------------------------------------
HISTORICAL
------------------------------------------------------ YEAR ENDED DECEMBER THREE MONTHS
THREE MONTHS ENDED MARCH 31,
ENDED MARCH 31, 1994 1995
FISCAL YEAR ENDED 31, ------------------- -------------------
-------------------------------------- -------------- SCENARIO SCENARIO SCENARIO SCENARIO
1990 1991 1992 1993 1994 1994 1995 #1 (2) #2 (2) #1 (2) #2 (2)
------ ------ ------ ------ ------ ------ ------ -------- -------- -------- --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Results of Operations:
Revenue (3)................... $ 246 $ 252 $ 352 $ 408 $ 821 $ 162 $ 257 $ 534 $ 534 $ 139 $ 139
Earnings before cumulative
effect of change in
accounting principle (4)..... 51 26 81 181 33 25 (24) 102 103 17 17
Net earnings (4).............. 23 418 99 181 33 25 (24) 102 103 17 17
Per Common Share (5):
Earnings from continuing
operations before cumulative
effect of change in
accounting principle......... 2.20 1.26 4.00 9.08 1.63 1.21 (1.14) 4.73 4.63 0.75 0.74
Net earnings.................. 1.03 20.30 4.92 9.08 1.63 1.21 (1.14) 4.73 4.63 0.75 0.74
Dividends (6)(7).............. 0.70 0.70 1.95 0.50 -- -- -- -- -- -- --
Stock price (8)............... 35.00 47.85 50.65 59.40 60.25 59.40 60.25 42.20 42.85
Book value.................... 35.75 47.93 50.75 59.52 60.36 60.17 59.85 42.18 42.83
Financial Position:
Total assets.................. 2,204 1,801 1,709 2,759 3.549 3,575 2,097 2,148
Current portion of long-term
debt (8)..................... 16 8 1 11 30 31 11 11
Long-term debt, less current
portion (8).................. 255 97 18 452 899 922 360 360
Stockholders' equity (9)...... 835 996 1,021 1,191 1,231 1,272 953 1,004
Formula value (8)............. 835 996 1,021 1,191 1,231
<FN>
------------------------------
(1) The pro forma results of operations data are computed assuming that the MFS
Recapitalization, the Exchange Offer and the Spin-off were consummated on
December 26, 1993 and January 1,1995 for the fiscal year ended December 31,
1994 and the three months ended March 31, 1995, respectively. The pro forma
financial position data as of March 31, 1995 assumes that such transactions
were consummated as of such date. The pro forma financial data of Kiewit
Diversified Group should be read in conjunction with the Kiewit Diversified
Group's historical financial statements and the notes thereto and the "Pro
Forma Financial Information" included elsewhere or incorporated by
reference herein.
(2) The pro forma information assumes, in two separate scenarios, that
3,000,000 shares (Scenario 1) and 5,000,000 shares (Scenario 2) of
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer.
(3) In October 1993, the Group acquired 35% of the outstanding shares of C-TEC
Corporation that have 57% of the available voting rights. In December 1994,
the Group increased its ownership in C-TEC to 49% and 58% of the
outstanding shares and voting rights, respectively. In January 1994, MFS
issued $500 million of 9.375% Senior Discount Notes.
(4) In 1993, through two public offerings, the Group sold 29% of the common
stock of MFS, resulting in a $137 million after-tax gain. In 1994,
additional MFS stock transactions resulted in a $35 million after-tax gain
to the Group and reduced its ownership in MFS to 67%.
(5) In connection with the January 8, 1992 reorganization, each share of
previous Class B and Class C Stock was exchanged for one share of new Class
B Stock or Class C Stock and one share of new Class D Stock. Therefore, for
purposes of computing Class D Stock per share data, the number of shares
for years 1990 and 1991 are assumed to be the same as the corresponding
number of shares of the previous Class B and Class C Stock. Fully diluted
earnings per share have not been presented because it is not materially
different from primary earnings per share.
(6) The 1992 dividends include $.35 for dividends declared in 1992 but paid in
January, 1993. Years 1990 and 1991 reflect dividends paid by PKS on its
previous Class B and Class C Stock that have been attributed to Kiewit
Diversified Group and Kiewit Construction & Mining Group based upon the
relative formula values of each group which were determined at the end of
each preceding year. Accordingly, the dividends may bear no relationship to
the dividends that would have been declared by the Board in such years had
the new Class D Stock and the Class B and Class C Stock been outstanding.
(7) Pro forma dividends have not been presented as the amount of any dividends
that may have been declared if the transactions had occurred as of the
beginning of the respective periods cannot be determined.
(8) Pursuant to the Certificate of Incorporation, the stock price and formula
value calculations are computed annually at the end of the fiscal year,
except that adjustments to the stock price to reflect dividends are made at
the time such dividends are declared.
(9) Unless Class D Stock becomes Publicly Traded, PKS is generally committed to
purchase all Class D Stock at the price determined, in accordance with the
Certificate of Incorporation, when put to PKS by a stockholder. The
aggregate redemption value of the Class D Stock at March 31, 1995 was $1.28
billion.
</TABLE>
47
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
OF MFS COMMUNICATIONS COMPANY, INC.
The development and acquisition by MFS of its networks and services during
the periods reflected below materially affect the comparability of that data
from one period to another. The following selected consolidated financial data
should be read in conjunction with the Consolidated Financial Statements of MFS
and the notes thereto, incorporated by reference herein. No cash dividends were
paid in any of the periods presented below.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED THREE MONTHS
--------------------------------------------------------- ENDED
1990 (1) 1991 (2) 1992 1993 1994 (3) MARCH 31, 1995
-------- -------- ----------- ----------- ----------- --------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenue:
Telecommunications services..................... $ 8,951 $ 23,158 $ 47,585 $ 70,048 $ 228,707 $103,788
Network systems integration..................... 1,721 14,065 61,122 71,063 58,040 14,552
-------- -------- ----------- ----------- ----------- --------------
Total......................................... 10,672 37,223 108,707 141,111 286,747 118,340
Costs and expenses:
Operating expenses.............................. 13,971 33,963 76,667 102,905 273,431 119,882
Depreciation and amortization................... 7,990 11,761 20,544 34,670 73,869 29,073
General and administrative expenses............. 11,590 18,429 23,267 34,989 75,576 25,941
-------- -------- ----------- ----------- ----------- --------------
Total......................................... 33,551 64,153 120,478 172,564 422,876 174,896
-------- -------- ----------- ----------- ----------- --------------
Loss from operations.............................. (22,879) (26,930) (11,771) (31,453) (136,129) (56,556)
Other income (expense) net (4).................... (8,052) (1,314) (792) 8,464 (17,175) (7,252)
-------- -------- ----------- ----------- ----------- --------------
Loss before income taxes.......................... (30,931) (28,244) (12,563) (22,989) (153,304) (63,808)
Income tax benefit (expense)...................... -- -- (566) 7,220 2,103 (100)
-------- -------- ----------- ----------- ----------- --------------
Net loss........................................ $(30,931) $(28,244) $(13,129) $(15,769) $(151,201) $ (63,908)
-------- -------- ----------- ----------- ----------- --------------
-------- -------- ----------- ----------- ----------- --------------
Loss per share (5) ............................... $(0.30) $(0.30) $(2.42) $(0.99)
----------- ----------- ----------- --------------
----------- ----------- ----------- --------------
Number of shares (5).............................. 44,085,000 52,882,000 62,437,000 64,365,000
----------- ----------- ----------- --------------
----------- ----------- ----------- --------------
Ratio of earnings to combined fixed charges and
preferred stock dividends (6).................... -- -- -- -- -- --
OTHER DATA:
EBITDA (7)...................................... $(14,889) $(15,169) $ 8,773 $ 3,217 $ (62,260) $ (27,483)
Net cash provided by (used in) operating
activities..................................... $(27,695) $(21,965) 28,741 32,946 (10,442) (21,255)
Capital expenditures, including acquisitions of
businesses, net of cash acquired............... 39,140 92,411 110,171 128,651 576,711 106,665
STATISTICAL DATA (8):
Circuits in service (9)......................... 173,958 465,420 589,130 947,391 1,713,430 1,964,872
Buildings connected............................. 226 695 1,101 1,583 2,754 3,284
Route miles (10)................................ 127 373 858 1,298 2,405 2,616
Fiber miles (11)................................ 10,359 22,982 38,595 62,154 107,919 122,074
Switches........................................ -- -- -- 1 12 12
BALANCE SHEET DATA:
Networks and equipment.......................... $ 82,451 $159,751 $243,243 $370,334 $ 787,453 $ 897,920
Total assets.................................... 102,959 204,819 363,299 906,937 1,584,546 1,554,945
Long-term debt, less current portion............ 17,849 7,659 169 143 548,333 560,688
Stockholders' equity............................ (36,739) 162,538 298,516 811,105 770,103 719,610
<FN>
------------------------------
(1) Reflects the acquisition as of April 1, 1990 of 80% of the common stock of
MFS Chicago, which owns MFS's network in Chicago.
(2) Reflects the acquisition as of October 17, 1991 of 85% of the common stock
of MFS/ICC, which owns MFS's network in the Washington, D.C. metropolitan
area.
</TABLE>
48
<PAGE>
<TABLE>
<S> <C>
(3) Reflects the acquisition of Centex Telemanagement, Inc. as of May 18, 1994,
Cylix Communications Corporation as of November 1, 1994 and RealCom Office
Communications, Inc. as of November 14, 1994.
(4) Reflects the assumption of $23.6 million principal amount of debt in
connection with the acquisition of MFS Chicago in April 1990, in addition
to interest charged on advances from KDG through 1990. MFS recorded
interest expense in respect of such advances of $7.2 million in 1990.
(5) See Note 2 to the Consolidated Financial Statements, which describes the
calculation of loss per share.
(6) For each of the five years ended December 31, 1994 and the three months
ended March 31, 1995, earnings were insufficient to cover fixed charges
during the periods shown by the amount of loss before income taxes of
$30,931,000, $28,244,000, $12,563,000, $22,989,000, $153,304,000 and
$63,808,000, respectively.
(7) EBITDA consists of earnings (loss) before interest, income taxes,
depreciation and amortization. EBITDA is commonly used in the
communications industry to analyze companies on the basis of operating
performance, leverage and liquidity. EBITDA is not intended to represent
operating results or cash flows as determined by generally accepted
accounting principles. See Consolidated Statements of Cash Flows.
(8) Information presented as of the end of the period indicated and derived
from non-financial records prepared by MFS which are not audited. Includes
statistical data for the Chicago network which MFS managed prior to its
acquisition by MFS as described in Note 1 above.
(9) All circuits have been expressed as voice grade equivalent circuits.
(10) Route miles refers to the number of miles of the telecommunications path in
which the fiber optic cables are installed.
(11) Fiber miles refers to the number of route miles installed (excluding
pending installations) along a telecommunications path multiplied by the
number of fibers along that path.
</TABLE>
49
<PAGE>
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER
TERMS; POTENTIAL PRORATION. Upon the terms and subject to the conditions
set forth herein and in the Letter of Transmittal (which together constitute the
"Exchange Offer"), PKS hereby offers to exchange and PKS will exchange
(i) .416598 of a share of Class D Stock for each outstanding share of Class
B Stock and Class C Stock (including all shares of Class C Stock issued in
exchange for Exchangeable Debentures),
(ii) 24.75 shares of Class C Stock and 24.75 shares of Class D Stock for
each $1,000 principal amount of each outstanding 1990 Series Convertible
Debenture due October 31, 2000 (such shares of Class C Stock will then be
exchangeable for a total of 10.31 shares of Class D Stock pursuant to the
Exchange Offer),
(iii) 22.98 shares of Class C Stock and 22.98 shares of Class D Stock for
each $1,000 principal amount of each outstanding 1991 Series Convertible
Debenture due October 31, 2001 (such shares of Class C Stock will then be
exchangeable for a total of 9.57 shares of Class D Stock pursuant to the
Exchange Offer), and
(iv) 19.97 shares of Class D Stock for each $1,000 principal amount of each
outstanding 1993 Series Convertible Debenture due October 31, 2003,
that is validly tendered and not properly withdrawn on or prior to the
Expiration Date. See " -- Withdrawal Rights," below. All outstanding shares of
Class C Stock (including shares of Class C Stock issued to certain employees of
PKS in connection with the Company's annual offering of Class C Stock in 1995),
as well as shares of Class C Stock received by debentureholders in exchange for
Class C and D Debentures in the Exchange Offer, will be exchangeable for Class D
Stock pursuant to the Exchange Offer. The Exchange Offer will be open until
[ ], 1995 unless extended as described herein.
The exchange ratio of shares of Class D Stock to be received by tendering
stockholders for the Exchangeable Stock was established by the PKS Board of
Directors on June 9, 1995. In determining the exchange ratio for the
Exchangeable Stock, the PKS Board of Directors employed the conversion ratio
that was applicable to the January 1, 1995 conversion of Class B Stock and Class
C Stock into Class D Stock (I.E., $60.25 to $26.00, or 1:431535) adjusted for
the dividends paid on Class B Stock and Class C Stock in January 1995 of $.45
per share and in May 1995 of $.45 per share (yielding a ratio of $60.25 to
$25.10, or 1:.416598). In lieu of issuing fractional shares, PKS will round the
number of shares of Class D Stock received by a tendering holder of Exchangeable
Stock to the nearest whole number of shares without any additional consideration
being payable by or to such holder.
In the case of the Exchangeable Debentures, the PKS Board established an
exchange ratio whereby each Exchangeable Debenture may be exchanged for that
number of shares of Class D Stock (and, in the case of Class C and D Debentures,
that number of shares of Class C Stock) that would have been issuable upon
conversion of such debenture in accordance with its terms. In lieu of issuing
fractional shares, PKS will round the number of shares of Class D Stock (and
Class C Stock in the case of Class C and D Debentures) received by a tendering
holder of an Exchangeable Debenture to the nearest whole number of shares
without any additional consideration being payable by or to such holder. In
addition, interest on the tendered Exchangeable Debentures accrued to and
including the date of the consummation of the Exchange Offer will be paid to
such holder. If such Exchangeable Debentures are pledged to FirstTier Bank,
N.A., PKS will pay such accrued interest to FirstTier to the extent of interest
accrued on the underlying loan by FirstTier to the holder of the Exchangeable
Debentures, and will pay only the remaining amount directly to the
debentureholder.
Although PKS does not anticipate that it will be necessary to impose a limit
on the amount of Exchangeable Stock that may be exchanged in the Exchange Offer,
PKS expressly reserves the right to do so if the PKS Board of Directors
determines that acceptance of all tendered Exchangeable Stock would not be in
the best interest of PKS and its stockholders. If the PKS Board were to take
such
50
<PAGE>
action, it would impose such limit on the tendered Exchangeable Stock (but not
on the tendered Exchangeable Debentures) on a pro rata basis and would follow
the procedures otherwise applicable to a modification of the Exchange Offer. See
"The Exchange Offer -- Right of PKS to Extend, Abandon or Modify the Exchange
Offer or Defer Acceptance of Tendered Exchangeable Securities."
The Exchange Offer is not conditioned upon any minimum amount of
Exchangeable Securities being tendered for exchange. However, the Exchange Offer
is subject to certain other conditions. See "The Exchange Offer -- Conditions to
the Exchange Offer."
As of June 23, 1995, there were 884,400 shares of Class B Stock issued and
outstanding, held by four holders of record, 13,944,365 shares of Class C Stock
issued and outstanding, held by 1,255 holders of record, $805,000 principal
amount of 1990 Series Convertible Debentures outstanding, held by 41 holders of
record, $1,740,000 principal amount of 1991 Series Convertible Debentures
outstanding, held by 74 holders of record, and $455,000 principal amount of 1993
Series Convertible Debentures outstanding, held by 12 holders of record. As of
such date, directors of PKS held, in the aggregate, 4,332,452 shares of Class C
Stock, $160,000 principal amount of 1990 Series Convertible Debentures, $425,000
principal amount of 1991 Series Convertible Debentures and $200,000 principal
amount of 1993 Series Convertible Debentures. Such directors have indicated to
PKS that they do not intend to tender their Exchangeable Stock pursuant to the
Exchange Offer with the exception of Walter Scott, Jr., Chairman of the Board
and President of PKS, and Robert E. Julian, Executive Vice President and Chief
Financial Officer of PKS, who expect to tender, in the aggregate, 785,892 shares
of Class C Stock pursuant to the Exchange Offer. Mr. Scott's intention to tender
Class C Stock in the Exchange Offer reflects his assessment (based on his
assumptions as to the amount of Class C Stock to be offered for sale by PKS and
the amount of such stock to be repurchased by PKS, converted to Class B Stock or
converted to Class D Stock) of the number of shares of such stock he would
otherwise be required to sell to PKS or convert to Class D Stock within the next
few years pursuant to the PKS Certificate of Incorporation. The PKS Certificate
of Incorporation provides that, if for any reason a holder owns more than 10% of
the issued and outstanding shares of Class C Stock, on a fully-diluted basis, on
January 1st of any year, such holder must sell back to PKS or convert to Class D
Stock (or, in the case of Mr. Scott, Class B Stock or Class D Stock) that amount
of such Class C Stock which is in excess of such 10% limitation. Mr. Julian's
intention to tender Class C Stock reflects the fact that his responsibilities
with PKS relate primarily to the Diversified Group. See "Certain Transactions --
Intentions of Certain Significant Stockholders Regarding Participation in
Exchange Offer." The Company expects that all Exchangeable Debentures, including
those held by the directors of PKS, will be tendered pursuant to the Exchange
Offer. See "Risk Factors -- Risk Factors Relating to the Exchange Offer, The
Spin-off and PKS Securities -- Certain Consequences of Decision Not to
Exchange."
This Prospectus and the Letters of Transmittal are being sent to persons who
were holders of record of Class B Stock, Class C Stock, Class D Debentures and
Class C and D Debentures as of the close of business on July 31, 1995, including
those employees who purchased shares of Class C Stock in connection with PKS's
annual offering of Class C Stock in 1995.
Participation in the Exchange Offer is voluntary, and holders of
Exchangeable Securities should carefully consider whether or not to accept the
Exchange Offer. See "Risk Factors." There are no dissenter's rights of appraisal
in connection with the Exchange Offer.
PKS does not intend to terminate the registration of the Class C Stock under
the Exchange Act after the consummation of the Exchange Offer.
PROCEDURE FOR TENDERING EXCHANGEABLE SECURITIES; EXCHANGE OF EXCHANGEABLE
SECURITIES; DELIVERY OF OFFERED STOCK
PROCEDURE FOR TENDERING EXCHANGEABLE SECURITIES. To tender Exchangeable
Securities pursuant to the Exchange Offer, a properly completed and duly
executed Letter of Transmittal (or facsimile thereof), any other documents
required by PKS and certificates for the Exchangeable Securities to be
51
<PAGE>
tendered must be received by PKS prior to 5:00 p.m., Omaha, Nebraska time, on
the Expiration Date. Separate Letters of Transmittal will be required for the
tender of (i) the Class B Stock, (ii) the Class C Stock and (iii) the
Exchangeable Debentures.
A holder of an Exchangeable Debenture may not tender less than the full
principal amount of such debenture in the Exchange Offer.
A tender of Exchangeable Securities made pursuant to the instructions
contained herein and in the Letter of Transmittal will constitute a binding
agreement, subject to withdrawal rights as described herein, between the
tendering securityholder and PKS upon the terms and subject to the conditions of
the Exchange Offer.
If Exchangeable Stock has been pledged to a lender, the registered holder of
such pledged Exchangeable Stock must make appropriate arrangements with such
lender for valid tender of the certificates representing the pledged
Exchangeable Stock. If, however, such lender is FirsTier Bank, N.A. and the
holder so directs in such holder's Letter of Transmittal, PKS will arrange
directly with such bank for the delivery of such pledged certificates to PKS.
PKS will deliver the Offered Stock issued in exchange for Exchangeable Stock
directly to any lending institution to which such Exchangeable Stock was pledged
if so directed by the registered holder of such pledged stock in such holder's
Letter of Transmittal. If the Offered Stock received in exchange for the
tendered Exchangeable Stock is to be delivered to a lender other than FirsTier
Bank, N.A., the Letter of Transmittal must state with specificity the
information necessary (including name, address and contact person of the lender)
to effect such delivery. If a holder of pledged Exchangeable Stock does not
designate the lending institution to which the Offered Stock received in
exchange for tendered Exchangeable Stock is to be delivered, PKS may deliver
such Offered Stock to the exchanging securityholder, but reserves the right to
deliver such Offered Stock directly to a lending institution if PKS believes in
good faith that such lending institution is entitled to receive the Offered
Stock under a borrowing arrangement with the exchanging securityholder.
If Exchangeable Debentures have been pledged to a lender, a holder of
Exchangeable Debentures must specify in the related Letter of Transmittal the
name of the lending institution to which such Exchangeable Debentures are
pledged. Execution and return of a Letter of Transmittal relating to such
pledged Exchangeable Debentures will constitute, upon receipt by PKS,
authorization by the exchanging debentureholder (i) to the lending institution
to deliver the pledged Exchangeable Debentures directly to PKS for exchange
pursuant to the Exchange Offer and (ii) to PKS to deliver the Offered Stock
issued in exchange for such tendered Exchangeable Debentures directly to the
lending institution which tendered such Exchangeable Debentures. Accordingly,
holders who wish to tender pledged Exchangeable Debentures in the Exchange Offer
will not be required to make any arrangements with the lending institution with
respect to such matters. If a holder of pledged Exchangeable Debentures does not
designate the lending institution to which the Offered Stock received in
exchange for tendered Exchangeable Debentures is to be delivered, PKS may
deliver such Offered Stock to the exchanging debentureholder, but reserves the
right to deliver such Offered Stock directly to a lending institution if PKS
believes in good faith that such lending institution is entitled to receive the
Offered Stock under a borrowing arrangement with the exchanging debentureholder.
If Exchangeable Debentures have been pledged to FirsTier Bank, N.A.,
execution and return of the Letter of Transmittal also will constitute, upon
receipt by PKS, authorization to pay to FirstTier Bank, N.A., any and all
interest accrued on loans from FirsTier Bank, N.A. secured by the Exchangeable
Debentures through the Exchange Date, from and to the extent of interest accrued
on the Exchangeable Debentures through the Exchange Date, and otherwise payable
to the holders of the Exchangeable Debentures. PKS will pay the remaining
portion of interest accrued on the Exchangeable Debentures to the holders
thereof as soon as practicable after the Exchange Date.
PERSONS WHO HAVE PLEDGED EXCHANGEABLE SECURITIES TO A LENDER AND WHO ARE
CONSIDERING PARTICIPATION IN THE EXCHANGE OFFER, OR WHO HAVE PLEDGED CLASS D
STOCK TO A LENDER, SHOULD CONSULT WITH THE LENDER AS TO THE EFFECT OF THE
EXCHANGE OFFER AND THE SPIN-OFF ON THEIR LOAN ARRANGEMENTS.
52
<PAGE>
If any certificates representing Exchangeable Securities have been
destroyed, lost or stolen, the tendering securityholder must (a) furnish to PKS
evidence, satisfactory to it in its sole discretion, of the ownership of and the
destruction, loss or theft of such certificate, (b) furnish to PKS indemnity,
satisfactory to it in its sole discretion, and (c) comply with such other
reasonable requirements as PKS may prescribe.
The method of delivery of certificates representing the Exchangeable
Securities and all other required documents is at the option and risk of the
tendering securityholder. If certificates representing the Exchangeable
Securities are sent by mail, registered mail with return receipt requested,
properly insured, is recommended and sufficient time to ensure timely receipt
should be allowed.
EXCHANGE OF EXCHANGEABLE SECURITIES; DELIVERY OF OFFERED STOCK. Upon the
terms and subject to the conditions of the Exchange Offer (including, without
limitation, the right of PKS to impose a limit on the number of shares of
Exchangeable Stock accepted for exchange in the Exchange Offer), on the Exchange
Date (as defined below) PKS will accept for exchange, and will issue shares of
Offered Stock in exchange for, Exchangeable Securities that have been validly
tendered and not properly withdrawn on or prior to the Expiration Date, provided
that PKS has not otherwise notified tendering securityholders of its intent to
extend, abandon or modify the Exchange Offer or defer acceptance of tendered
Exchangeable Securities. The Exchange Date will be the Expiration Date or, in
the event PKS shall defer acceptance of tendered Exchangeable Securities, such
later date and time at which PKS shall accept tenders of Exchangeable Securities
pursuant to the Exchange Offer. Exchange of the Exchangeable Securities accepted
for exchange pursuant to the Exchange Offer will be made only after timely
receipt by PKS of (i) certificates for such Exchangeable Securities and (ii) a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), together with any other documents required by PKS. Holders of
Exchangeable Securities so accepted for exchange will become holders of record
of the Offered Stock on the Exchange Date.
PKS will deliver certificates representing shares of Offered Stock issued in
exchange for Exchangeable Securities accepted for exchange as soon as
practicable following such acceptance. If any tendered Exchangeable Securities
are not exchanged pursuant to the Exchange Offer for any reason, or if
certificates are submitted for more Exchangeable Stock than is (i) tendered for
exchange or (ii) accepted for exchange, certificates for such untendered or
unexchanged securities will be returned without expense as promptly as
practicable following the consummation or abandonment of the Exchange Offer.
Under no circumstances will interest (other than interest accrued on the
Exchangeable Debentures to and including the Exchange Date) be paid by PKS
pursuant to the Exchange Offer, regardless of any delay in making such exchange.
Tendering securityholders are responsible for payment of all stock transfer
taxes, if any, payable in connection with the Exchange Offer.
All questions as to the form of documents and the validity, form,
eligibility (including time of receipt), and acceptance for exchange of any
tender of securities and notices of withdrawal will be determined by PKS in its
sole discretion, which determination will be final and binding. PKS reserves the
absolute right to reject any or all tenders of Exchangeable Securities
determined by it not to be in proper form or any acceptance for exchange of
Exchangeable Securities which may, in the opinion of PKS's counsel, be unlawful.
PKS also reserves the absolute right to waive any defect or irregularity in any
tender of Exchangeable Securities. PKS will not be under any duty to give
notification of any defect or irregularity in tenders or notices of withdrawal
or incur any liability for failure to give any such notification.
WITHDRAWAL RIGHTS
Exchangeable Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date without penalty on the terms
and conditions contained herein. However, once the Expiration Date occurs,
tenders of Exchangeable Securities are irrevocable by the tendering
securityholder. If PKS either extends the Expiration Date or defers its
acceptance of Exchangeable
53
<PAGE>
Securities for exchange, then, without prejudice to PKS's other rights under the
Exchange Offer, PKS may retain all Exchangeable Securities tendered, subject
only to the withdrawal rights of tendering securityholders as described in this
section.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by PKS at the address
set forth in the Letter of Transmittal. Any such notice of withdrawal must
specify the name of the person who tendered the Exchangeable Securities
precisely as it appears in the Letter of Transmittal and the amount of
securities to be withdrawn. If certificates have been delivered to PKS, the
serial numbers shown on the particular certificates evidencing the Exchangeable
Securities to be withdrawn and a signed notice of withdrawal must be submitted
prior to the physical release of the certificates for the Exchangeable
Securities to be withdrawn. Withdrawals may not be rescinded, and Exchangeable
Securities withdrawn will thereafter be deemed not validly tendered for purposes
of the Exchange Offer. However, withdrawn securities may be retendered by again
following the procedures described herein and in the Letter of Transmittal at
any time prior to the Expiration Date.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer and without
prejudice to PKS's other rights under the Exchange Offer, PKS shall not accept
for exchange any Exchangeable Securities unless the MFS Recapitalization shall
have been approved by a majority of the holders of MFS Common Stock voting at
the MFS 1995 annual stockholders meeting, presently expected to be held on
[August ], 1995. This condition may not be waived, and if such condition is
not satisfied, the Exchange Offer will not be consummated regardless of the
circumstances surrounding the nonfulfillment of such condition.
In connection with obtaining approval of the holders of MFS Common Stock,
PKS has agreed to vote all of the shares of MFS Common Stock owned or controlled
by it in the same manner as the majority of the non-PKS holders of MFS Common
Stock (and not the holders of any preferred stock of MFS which may be
outstanding) present in person or by proxy at the meeting vote. Thus, the MFS
Recapitalization will be approved only if supported by a majority of such
non-PKS stockholders of MFS.
PKS has received the Ruling from the IRS confirming, among other things,
that the Spin-off and certain related transactions could be consummated on a
tax-free basis to the holders of Class D Stock for United States federal income
tax purposes. The Exchange Offer will not be consummated unless the Ruling
remains substantially in effect as of the Exchange Date, as determined by the
PKS Board of Directors in its sole discretion.
Any determination by PKS concerning the events described above will be final
and binding upon all parties. There are no federal or state regulatory
requirements or approvals that must be complied with or obtained as a condition
of the Exchange Offer.
RIGHT OF PKS TO EXTEND, ABANDON OR MODIFY THE EXCHANGE OFFER OR DEFER ACCEPTANCE
OF TENDERED EXCHANGEABLE SECURITIES
PKS expressly reserves the right to defer acceptance for exchange of any
Exchangeable Securities or to abandon the Exchange Offer and not accept for
exchange any Exchangeable Securities if the PKS Board of Directors determines
for any reason that such deferral or abandonment would be in the best interest
of PKS and its stockholders. PKS will abandon the Exchange Offer in the event it
abandons the Spin-off. See "The Spin-off -- Conditions to the Spin-off; Right of
PKS to Abandon, Defer or Modify the Spin-off."
PKS also reserves the right, at any time or from time to time, whether or
not the conditions described under "The Exchange Offer -- Conditions to the
Exchange Offer" shall have been satisfied, (i) to extend the Expiration Date or
(ii) if the PKS Board of Directors determines for any reason that
54
<PAGE>
such action would be in the best interest of PKS and its stockholders, to modify
the Exchange Offer in any respect, by giving written notice of such extension or
modification to the holders of Exchangeable Securities.
Without limiting the factors the PKS Board might take into account in taking
action with respect to the Exchange Offer, the PKS Board might consider
abandonment or modification of the terms of the Exchange Offer if such
abandonment or modification were determined to be appropriate in light of a
change in applicable law or other unforeseen legal or regulatory considerations.
The PKS Board might also consider modification of the terms of the Exchange
Offer under the circumstances described under "Risk Factors -- Risk Factors
Relating to the Exchange Offer, the Spin-off and PKS Securities -- Possible
Limit on Amount of Exchangeable Stock to Be Accepted in Exchange Offer."
If PKS modifies a material term of the Exchange Offer, it will extend the
period of time during which the Exchange Offer will remain open if necessary so
that the Expiration Date, as extended, is at least 10 business days after the
announcement of such modification and, to the extent required by applicable
securities laws, will file an appropriate post-effective amendment to the
Registration Statement of which this Prospectus forms a part with the
Commission. If PKS modifies the terms of the Exchange Offer, extends the period
of time during which the Exchange Offer is open or defers its acceptance of
Exchangeable Securities for exchange, then, without prejudice to PKS's other
rights under the Exchange Offer, PKS may retain all Exchangeable Securities
tendered, subject only to the tendering securityholder's withdrawal rights
described above in "The Exchange Offer -- Withdrawal Rights."
If PKS abandons the Exchange Offer as described herein, then PKS will return
all tendered certificates representing Exchangeable Securities as indicated by
the applicable Letter of Transmittal as soon as practicable following the
announcement of such occurrence.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS RELATING TO THE EXCHANGE
OFFER
The following discussion sets forth the material United States federal
income tax consequences under existing law of the Exchange Offer.
PKS has received rulings from the IRS concerning the treatment of certain
exchanges effected under the Exchange Offer (the "Exchange Tax Rulings"). The
continuing validity of the Exchange Tax Rulings is subject to the validity of
certain representations and assumptions made in connection with obtaining such
rulings. PKS is not aware of any facts or circumstances that should cause such
representations or assumptions to be untrue.
The Exchange Tax Rulings provide, among other things, that for United States
federal income tax purposes:
(1) The exchange of Offered Stock for Exchangeable Debentures will
constitute a recapitalization within the meaning of section 368(a)(1)(E) of
the Internal Revenue Code of 1986, as amended (the "Code"), and PKS and each
holder of Exchangeable Debentures who elects to participate in that exchange
will be "a party to a reorganization" within the meaning of section 368(b)
of the Code;
(2) No gain or loss will be recognized by a holder of Exchangeable
Debentures who elects to participate in the Exchange Offer upon the exchange
of Offered Stock for Exchangeable Debentures;
(3) No gain or loss will be recognized by PKS upon the exchange of
Offered Stock for Exchangeable Debentures:
(4) The basis of Offered Stock received pursuant to the Exchange Offer
will be the same as the basis of Exchangeable Debentures exchanged therefor;
and
55
<PAGE>
(5) The holding period of Offered Stock received pursuant to the
Exchange Offer will include the holding period of Exchangeable Debentures
surrendered therefor, provided that such debentures are held as capital
assets on the date of the exchange.
No tax rulings have been sought from the IRS (and none will be requested)
with respect to any tax issues associated with the exchange of Offered Stock for
Exchangeable Stock. Nevertheless, in the opinion of Sutherland, Asbill &
Brennan, regular outside tax counsel to PKS, although the issue is not free from
doubt, such exchange should constitute for United States federal income tax
purposes a recapitalization within the meaning of section 368(a)(1)(E) of the
Code. In that event, the following United States federal income tax consequences
should follow with respect to such exchange:
(1) PKS and each holder of Exchangeable Stock who elects to participate
in the Exchange Offer will be "a party to a reorganization" within the
meaning of section 368(b) of the Code;
(2) No gain or loss will be recognized by a holder of Exchangeable Stock
who elects to participate in the Exchange Offer upon the exchange of Offered
Stock for Exchangeable Stock;
(3) No gain or loss will be recognized by PKS upon the exchange of
Offered Stock for Exchangeable Stock;
(4) The basis of Offered Stock received pursuant to the Exchange Offer
will be the same as the basis of Exchangeable Stock exchanged therefor; and
(5) The holding period of Offered Stock received pursuant to the
Exchange Offer will include the holding period of Exchangeable Stock
exchanged therefor, provided that such Exchangeable Stock is held as a
capital asset on the date of the exchange.
If, contrary to the Exchange Tax Rulings, the exchange of Offered Stock for
Exchangeable Debentures were taxable, then, among other consequences, gain or
loss would be recognized by each holder of Exchangeable Debentures who elects to
participate in the Exchange Offer upon the exchange of Offered Stock for
Exchangeable Debentures. Similarly, if, contrary to the opinion of Sutherland,
Asbill & Brennan, the exchange of Offered Stock for Exchangeable Stock were
taxable, then, among other consequences, gain or loss would be recognized by
each holder of Exchangeable Stock who elects to participate in the Exchange
Offer upon the exchange of Offered Stock for Exchangeable Stock. The amount of
any gain recognized upon a taxable exchange of Offered Stock for Exchangeable
Debentures or for Exchangeable Stock would equal the excess of the fair market
value of the Offered Stock over the holder's adjusted basis in the Exchangeable
Debentures or the Exchangeable Stock, and the amount of any loss recognized
would equal the excess of the holder's adjusted basis in the Exchangeable
Debentures or the Exchangeable Stock over the fair market value of the Offered
Stock. For purposes of determining the fair market value of the Offered Stock,
each share of Class C Stock should be treated as having a fair market value
equal to the Class B&C Per Share Price, and each share of Class D Stock should
be treated as having a fair market value equal to the Class D Per Share Price,
in each case at the time of consummation of the Exchange Offer.
THE FOREGOING DISCUSSION IS ONLY A SUMMARY OF CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER UNDER CURRENT LAW AND IS INTENDED
FOR GENERAL INFORMATION ONLY. THE DISCUSSION MAY NOT ACCURATELY DESCRIBE THE
TREATMENT OF HOLDERS OF EXCHANGEABLE SECURITIES IF SUCH HOLDERS RECEIVED SUCH
EXCHANGEABLE SECURITIES AS COMPENSATION, ARE FOREIGN PERSONS, OR ARE OTHERWISE
SUBJECT TO SPECIAL TREATMENT UNDER THE CODE. ALL HOLDERS OF EXCHANGEABLE
SECURITIES SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE PARTICULAR
CONSEQUENCES OF THE EXCHANGE OFFER TO THEM, INCLUDING (i) THE APPLICATION OF
UNITED STATES FEDERAL, STATE, AND LOCAL TAX LAWS, AND OF FOREIGN TAX LAWS AND
(ii) THE EFFECT OF CHANGES IN LAW, INCLUDING CHANGES HAVING RETROACTIVE EFFECT.
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THE SPIN-OFF
MANNER OF EFFECTING THE DISTRIBUTION
MANNER OF DISTRIBUTION; SPIN-OFF DATE. In the event that the conditions
described under "The Spin-off -- Conditions to the Spin-off; Right of PKS to
Abandon, Defer or Modify the Spin-off" are satisfied, and unless the PKS Board
of Directors has exercised its right to abandon the Spin-off if it determines
such action would be in the best interest of PKS and its stockholders, the
Spin-off will be declared and be effected on the Spin-off Date to holders of
record of Class D Stock (including Class D Stock issued in the Exchange Offer)
on such date. Such holders of Class D Stock will become holders of record of the
Spin-off Stock to which they are entitled on or promptly after the Spin-off
Date. PKS currently anticipates that the Spin-off Date will be the day after the
Expiration Date. PKS expressly reserves the right, in its sole discretion, to
defer the Spin-off Date if it determines that such action is in the best
interest of PKS and its stockholders, but if the Exchange Offer is consummated,
the Spin-off will be consummated promptly thereafter.
The number of shares of Spin-off Stock to be distributed in respect of each
outstanding share of Class D Stock will be determined on the Spin-off Date. Such
determination will be based on the number of shares of Class D Stock outstanding
on the Spin-off Date and accordingly will depend on the number of shares of
Class D Stock issued pursuant to the Exchange Offer. See "The Exchange Offer,"
"Overview -- The Spin-off" and "Overview -- The MFS Recapitalization."
As an administrative and cost-saving convenience, no certificates or scrip
representing, or cash in lieu of, fractional shares of Spin-off Stock will be
issued to holders of Class D Stock as part of the Spin-off. To the extent
fractional shares of Spin-off Stock would otherwise be issued to holders of
Class D Stock in the Spin-off, PKS will apply a convention whereby such
fractional shares are rounded to whole shares without affecting the total number
of shares of Spin-off Stock. For this purpose, PKS will calculate the aggregate
number of shares of MFS Common Stock and MFS Preferred Stock, respectively, that
would otherwise be issuable as fractional shares. Of such number of shares, one
whole share will be distributed to each of those holders of Class D Stock who
would otherwise be entitled to receive fractional shares of such stock, in the
order of the magnitude of such fractions, until all of such shares have been
distributed. The remaining holders of Class D Stock will not be entitled to
receive any consideration in respect of the fractional shares otherwise issuable
to them.
The shares of Spin-off Stock will be fully paid and nonassessable, and the
holders thereof will not be entitled to preemptive rights. The MFS Preferred
Stock is subject, by its terms, to restrictions on the transfer of such stock
and is subject to the irrevocable proxy to be granted by KDG to the Secretary
and Assistant Secretary of MFS. See "Description of Securities -- MFS Common
Stock" and "-- MFS Preferred Stock."
Certificates representing Spin-off Stock will be mailed to holders of Class
D Stock as soon as practicable after the Spin-off Date. Because the Spin-off
will require issuance and mailing of a significant number of stock certificates,
a delay of approximately three to four weeks in delivery of the certificates
representing Spin-off Stock might occur. Holders of Class D Stock should not
attempt to sell or transfer MFS Common Stock received pursuant to the Spin-off
until they have received the certificates evidencing such stock.
PKS will mail the certificates representing the Spin-off Stock to each
holder of Class D Stock of record on the Spin-off Date unless PKS has received
written notification from such holder, at least five business days prior to the
date that the certificates representing the Spin-off Stock are to be mailed,
that some or all of the Spin-off Stock received in the Spin-off is to be
delivered to a lending institution pursuant to a borrowing arrangement between
the holder and such lending institution. However, even if no notice is received
by PKS to such effect, PKS reserves the right to deliver the Spin-off Stock
received by a holder of Class D Stock in the Spin-off to a lending institution
if PKS believes in good faith that such lending institution is entitled to
receive such Spin-off Stock pursuant to a borrowing arrangement with the holder
of Class D Stock.
No holder of Class D Stock will be required to pay any cash or other
consideration, or to surrender or exchange shares of Class D Stock or any other
security or to take any other action in order to receive the Spin-off Stock
pursuant to the Spin-off.
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LISTING AND TRADING OF SPIN-OFF STOCK
MFS COMMON STOCK. MFS Common Stock is currently traded on the Nasdaq
National Market under the symbol "MFST." It is expected that the MFS Common
Stock will continue to be traded on the Nasdaq National Market after the
Spin-off. Because the obligation of PKS to repurchase the Class D Stock under
the circumstances and upon the terms and conditions set forth in PKS's
Certificate of Incorporation will not apply to the Spin-off Stock, the ability
of a holder of MFS Common Stock to realize value upon a sale of such stock will
be entirely dependent on the market for the MFS Common Stock. The prices at
which the MFS Common Stock will trade after the Spin-off will be determined by
the marketplace and may be influenced by many factors, including, among others,
the continuing depth and liquidity of the market for MFS Common Stock, investor
perception of MFS, the industries in which its businesses participate and
general economic and market conditions. On [ ], 1995 the last
reported sale price of the MFS Common Stock as reported by the Nasdaq National
Market was $[ ]. See "Market for Registrant's Common Stock and Related
Stockholder Matters" in the MFS Annual Report on Form 10-K incorporated herein
by reference for information regarding historical ranges of trading prices on
MFS Common Stock.
Shares of MFS Common Stock distributed in the Spin-off, after giving effect
to the MFS Recapitalization, will constitute approximately 65% of the MFS Common
Stock outstanding. Despite the agreements entered into with the directors of PKS
and MFS in connection with the Spin-off described at "Certain Transactions --
Agreements Regarding Restrictions on Transfer of Spin-off Stock" below, a
substantial number of shares of MFS Common Stock will become available for
future sale in the public market after the Spin-off. Sales of substantial
numbers of such shares in the public market in the future could adversely affect
the market price of the MFS Common Stock and could impair MFS's ability to raise
additional capital through the sale of its equity securities.
Shares of MFS Common Stock received by holders of Class D Stock in the
Spin-off will be freely transferable, except for shares of MFS Common Stock
received by directors of PKS and MFS as described below and shares of MFS Common
Stock received by persons who may be deemed to be "affiliates" of MFS within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
Persons who may be deemed to be affiliates of MFS after the Spin-off will
generally include individuals or entities that control, are controlled by, or
are under common control with MFS and include directors of MFS. Persons who are
affiliates of MFS will be permitted to sell their shares of MFS Common Stock
received in the Spin-off only pursuant to an effective registration statement
under the Securities Act or an exemption from the registration requirements of
the Securities Act. See "Certain Transactions -- Certain Agreements Between PKS
and MFS -- The Distribution Agreement" for a discussion of the proposed grant to
certain affiliates of MFS of registration rights with respect to the Spin-off
Stock.
In connection with the recent DECS offering by MFS, MFS has entered into
agreements with the directors of PKS (other than one director of PKS who was
elected after the closing of the DECS offering) and the directors of MFS who are
holders of Class D Stock regarding the MFS Common Stock to be received by such
directors as a result of the Spin-off. The agreements prohibit resales of such
MFS Common Stock for a period of two years from May 24, 1995, subject to certain
exceptions. See "Certain Transactions -- Agreements Regarding Restrictions on
Transfer of Spin-off Stock."
MFS PREFERRED STOCK. The terms of the MFS Preferred Stock provide that the
MFS Preferred Stock is non-transferable for a period of six years, with limited
exceptions, and is redeemable at the option of MFS beginning at the end of such
six-year period. Accordingly, the MFS Preferred Stock received in the Spin-off
will not have any realizable resale value until the earlier of (i) its
conversion into MFS Common Stock at the option of the holder beginning on the
first anniversary of the date of issuance thereof or (ii) the expiration of the
six-year transfer restriction. Even at the end of such six-year period there
will likely be no public trading market for the MFS Preferred Stock. See
"Description of Securities -- MFS Preferred Stock." MFS does not intend to apply
for listing of the MFS Preferred Stock on any national securities exchange, on
the Nasdaq National Market or in the over-the-counter market.
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CERTAIN EFFECTS OF SPIN-OFF ON CLASS D STOCK
Because approximately one-third of the current Class D Per Share Price of
$60.25 is attributable to MFS, the Class D Per Share Price will be significantly
reduced when the Spin-off is consummated. The amount of such reduction will
depend upon the number of Exchangeable Securities exchanged in the Exchange
Offer. For example, assuming in two alternative scenarios that (i) 3,000,000
shares and (ii) 5,000,000 shares of Exchangeable Stock, and in each case all of
the Exchangeable Debentures, are exchanged in the Exchange Offer, the estimated
Class D Per Share Price after giving effect to the Spin-off would be $41.00 and
$41.75, respectively. Accordingly, the price at which holders of Class D Stock
can sell such stock to PKS after the Spin-off pursuant to the Company's
obligation to repurchase such Class D Stock under the Company's Certificate of
Incorporation will be significantly reduced. See "Overview -- The Spin-off."
Furthermore, if and when the Class D Stock becomes Publicly Traded, the
Company's obligation to repurchase such stock will cease. The Class D Stock is
freely transferable. However, there is no established trading market for the
Class D Stock, and there has only been limited trading activity in the past.
The PKS Board of Directors has considered and will in the future again
consider the feasibility and desirability of listing the Class D Stock on a
national securities exchange or on the Nasdaq National Market or in the
over-the-counter market or taking other action to facilitate the Public Trading
of the Class D Stock. The ability to provide for the listing of the Class D
Stock on a securities exchange or on Nasdaq will be subject to the laws,
regulations and listing eligibility criteria in effect from time to time. See
"Risk Factors -- Effect of Class D Stock Becoming Publicly Traded."
A lender that has extended credit secured by PKS stock, in making decisions
as to how much credit to extend against the collateral held by such lender, may
assign a different loan-to-value ratio to the Class D Stock and the Spin-off
Stock after the Spin-off as compared to the loan-to-value ratio assigned to the
Class D Stock before the Spin-off. Furthermore, the Class D Per Share Price may
be less readily predictable than the Class B&C Per Share Price has historically
been, and the market value of the MFS Common Stock is expected to be more
volatile than the Class D Per Share Price has historically been. A decline in
the Class D Per Share Price of Class D Stock pledged to a lender or a decline in
the value of MFS Common Stock pledged to a lender could result in the lender
requiring that the borrower pledge additional collateral. ACCORDINGLY, PERSONS
WHO HAVE PLEDGED EXCHANGEABLE SECURITIES TO A LENDER AND WHO ARE CONSIDERING
PARTICIPATION IN THE EXCHANGE OFFER, OR WHO HAVE PLEDGED CLASS D STOCK TO A
LENDER, SHOULD CONSULT WITH THEIR LENDER AS TO THE EFFECT OF THE SPIN-OFF ON
THEIR LOAN ARRANGEMENTS.
CONDITIONS TO THE SPIN-OFF; RIGHT OF PKS TO ABANDON, DEFER OR MODIFY THE
SPIN-OFF
PKS will not consummate the Spin-off unless the MFS Recapitalization has
been approved by the holders of a majority of MFS Common Stock voting at the MFS
1995 annual stockholders meeting. Further, the Spin-off will not be consummated
unless the Ruling shall be substantially in effect with respect to the Spin-off
as of the Spin-off Date. There are no federal or state regulatory requirements
or approvals that must be complied with or obtained as a condition of the
Spin-off.
PKS expressly reserves the right, whether or not any of the foregoing
conditions shall have been satisfied, (i) to defer the Spin-off (to a date
certain or indefinitely) or (ii) to abandon the Spin-off if it determines for
any reason that such action is in the best interest of PKS and its stockholders.
The Spin-off will not necessarily be abandoned in the event the Exchange Offer
is abandoned. However, if the Exchange Offer is consummated, the Spin-off will
be consummated promptly thereafter.
PKS also reserves the right, at any time or from time to time, if the PKS
Board of Directors determines for any reason that such action would be in the
best interest of PKS and its stockholders and whether or not any of the
foregoing conditions shall have been satisfied, to modify the terms of the
Spin-off in any respect by giving notice of such modification to the holders of
Class D Stock (and, prior to the Expiration Date of the Exchange Offer, to the
holders of Exchangeable Securities).
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Without limiting the factors the PKS Board might take into account in taking
action with respect to the Spin-off, the PKS Board might consider abandonment or
modification of the terms of the Spin-off if such abandonment or modification
were determined to be appropriate in light of a change in applicable law or
other unforeseen legal or regulatory considerations.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS RELATING TO THE SPIN-OFF
The following discussion sets forth the material United States federal
income tax consequences of the Spin-off and certain related transactions under
existing law.
SPIN-OFF CONSIDERATIONS. PKS has received rulings from the IRS (the
"Spin-off Tax Rulings") relating to the treatment for United States federal
income tax purposes of both the Spin-off and the preliminary spin-off by KDG to
PKS of the MFS Common Stock and MFS Preferred Stock held by KDG after the MFS
Recapitalization (the "Preliminary Spin-off"). The continuing validity of the
Spin-off Tax Rulings is subject to the validity of certain representations and
assumptions made in connection with obtaining such rulings, including
representations or assumptions regarding the conduct of an active trade or
business by PKS, KDG, and MFS and certain of their subsidiaries both before and
after the Preliminary Spin-off and the Spin-off; the ownership by KDG and PKS of
a controlling interest in MFS immediately before the Preliminary Spin-off and
the Spin-off, respectively; the distribution of all the Spin-off Stock held by
KDG and PKS immediately before the Preliminary Spin-off and the Spin-off,
respectively; the business purposes for the Preliminary Spin-off and the
Spin-off; the limited nature of continuing transactions between MFS and PKS or
KDG and the arm's-length nature of payments to be made in connection with those
transactions; the absence, with limited exceptions, of any plans to dispose of
the assets or stock of PKS, KDG or MFS; the treatment of the Spin-off Stock as
stock of MFS and the Class D Stock as stock of PKS; and the accuracy of PKS, KDG
and MFS financial information submitted to the IRS. PKS is not aware of any
facts or circumstances that should cause such representations and assumptions to
be untrue.
The Spin-off Tax Rulings provide, among other things, that both the Spin-off
and the Preliminary Spin-off will qualify as tax-free spin-offs under section
355 of the Code. The Spin-off Tax Rulings also provide that for United States
federal income tax purposes:
(1) No gain or loss will be recognized by the holders of the Class D
stock upon the distribution of the Spin-off Stock in the Spin-off;
(2) Except as provided under section 367(e) of the Code (relating to
distributions to non-United States shareholders), no gain or loss will be
recognized by PKS upon the distribution of the Spin-off Stock in the
Spin-off;
(3) No gain or loss will be recognized by either PKS or KDG upon the
distribution of the Spin-off Stock in the Preliminary Spin-off;
(4) Assuming a holder of Class D Stock holds such stock as a capital
asset, such holder's holding period for the Spin-off Stock will include the
period during which such Class D Stock was held; and
(5) The tax basis of the Class D Stock held by a PKS stockholder
immediately prior to the Spin-off will be apportioned (based upon relative
market values at the time of the Spin-off) among the Class D Stock held
immediately after the Spin-off and the MFS Common Stock and MFS Preferred
Stock received by such stockholder in the Spin-off. Each share of Class D
Stock should be treated as having a fair market value equal to the Class D
Per Share Price.
The allocation of tax basis described above should be calculated separately
for each block of shares of Class D Stock with respect to which MFS Common Stock
or MFS Preferred Stock is received; that is, separately for each block of shares
of Class D Stock that was acquired at a different time or at a different cost
from any other block. As soon as practicable following the Spin-off, PKS intends
to make available to its stockholders information regarding the allocation of
basis between the Class D Stock and the Spin-off Stock.
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Treasury regulations governing section 355 of the Code require that all PKS
stockholders who receive Spin-off Stock attach statements to their federal
income tax returns for the taxable year in which they receive such stock, which
statements show the applicability of section 355 of the Code to the Spin-off.
PKS will provide each PKS stockholder with the information necessary to comply
with this requirement.
If, contrary to the Spin-off Tax Rulings, the Spin-off were taxable, then,
among other consequences, (i) corporate level income taxes would be payable by
the consolidated group of which PKS is the common parent, based upon the amount
by which the fair market value of the Spin-off Stock distributed in the Spin-off
exceeds PKS's basis therein and (ii) each holder of Class D Stock who receives
shares of Spin-off Stock would be treated as if such stockholder received a
taxable distribution, taxed first as a dividend to the extent of such
stockholder's pro rata share of PKS's available current and accumulated earnings
and profits, then as a tax-free recovery of such stockholder's tax basis in his
or her Class D Stock, and finally as a sale or exchange of property to the
extent of any excess amount.
POST-SPIN-OFF CONSIDERATIONS. Each share of MFS Preferred Stock received in
the Spin-off will be convertible and redeemable according to its terms, as
described below. In addition, each share of such stock will be entitled to
receive annual cumulative dividends, payable solely in cash. Any accrued but
unpaid dividends at the time of redemption or conversion of the MFS Preferred
Stock will be reflected in the redemption or conversion consideration for such
stock. See "Description of Securities -- MFS Preferred Stock."
No tax rulings have been sought from the IRS (and none will be requested)
with respect to any tax issues associated with either the possible redemption or
conversion of the MFS Preferred Stock subsequent to the Spin-off or the accrual
or payment of dividends on such stock subsequent to the Spin-off. In addition,
potential holders of MFS Preferred Stock should be aware that the United States
federal income tax treatment of any such redemption or conversion and of
dividends paid or accrued on the MFS Preferred Stock may be controlled or
affected by the particular facts or circumstances associated with a particular
holder or transaction, changes in those facts or circumstances, intervening
events, changes in, or reinterpretations of, law, and other factors. Subject to
both this qualification and the general qualification set forth below concerning
persons consulting their own tax advisors, in the opinion of Sutherland, Asbill
& Brennan, regular outside tax counsel to PKS, the following United States
federal income tax consequences should follow with respect to the MFS Preferred
Stock after the Spin-off:
(1) Except with respect to the possible receipt of cash in lieu of a
fractional share of MFS Common Stock and as described in paragraph (5)
below, no gain or loss should be recognized by a holder of MFS Preferred
Stock upon a conversion of such stock into MFS Common Stock or a redemption
of such stock for MFS Common Stock;
(2) Individual holders of MFS Preferred Stock should obtain sale or
exchange treatment on a redemption of such stock for cash if the redemption
meets one of the tests of section 302(b) of the Code (relating to
distributions in redemption of stock);
(3) Individual holders of MFS Preferred Stock should be considered to
have received a taxable distribution on such stock if a redemption of such
stock for cash does not meet one of the tests of section 302(b) of the Code;
in that event, the distribution will be subject to tax as a dividend to the
extent of MFS's available current and accumulated earnings and profits, then
as a tax-free recovery of the holder's tax basis in such stock, and then as
a sale or exchange of property to the extent of any excess ("Taxable
Distribution Treatment");
(4) Current cash dividends paid on the MFS Preferred Stock should be
subject to Taxable Distribution Treatment; and
(5) In the event that MFS does not pay current cash dividends on the MFS
Preferred Stock, then the United States federal income tax treatment of the
accrued dividends on such stock is
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uncertain; in general, holders of MFS Preferred Stock either should be
treated as if they had received an annual dividend of MFS Common Stock equal
in amount to the amount of the accrued but unpaid cash dividend ("Case I")
or should have no United States federal income tax consequences until the
MFS Preferred Stock is converted or redeemed or a subsequent cash dividend
is paid on the stock ("Case II"), although other treatments may be possible.
Under Case I, any stock dividend deemed paid on the MFS Preferred Stock
should be subject to Taxable Distribution Treatment. Under Case II, if a
subsequent cash dividend is paid, then the dividend should be subject on receipt
to Taxable Distribution Treatment; if a subsequent cash dividend is not paid,
but the holder of the MFS Preferred Stock receives additional cash or shares of
MFS Common Stock for the accrued but unpaid dividends at the time of redemption
or conversion of the MFS Preferred Stock, then the amount of cash or the value
of the shares of MFS Common Stock received by the holder in excess of the issue
price of the redeemed or converted MFS Preferred Stock should constitute a
distribution from MFS that will be subject on redemption or conversion to
Taxable Distribution Treatment. PKS understands that MFS has not made a decision
whether it will file information returns with the IRS with respect to accrued
but unpaid cash dividends under Case I, under Case II, or in some other manner.
Under proposed legislation, corporate and other non-individual holders of
MFS Preferred Stock may have a cash redemption of their shares of such stock
treated differently from a cash redemption of shares of MFS Preferred Stock held
by individuals. Potential non-individual holders of MFS Preferred Stock should
consult their own tax advisors regarding this issue.
THE FOREGOING DISCUSSION IS ONLY A SUMMARY OF CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES OF THE SPIN-OFF AND CERTAIN RELATED TRANSACTIONS UNDER
CURRENT LAW AND IS INTENDED FOR GENERAL INFORMATION ONLY. THE DISCUSSION MAY NOT
ACCURATELY DESCRIBE THE TREATMENT OF HOLDERS OF CLASS D STOCK AND POTENTIAL
HOLDERS OF SPIN-OFF STOCK IF SUCH HOLDERS RECEIVED SUCH STOCK AS COMPENSATION,
ARE FOREIGN PERSONS, OR ARE OTHERWISE SUBJECT TO SPECIAL TREATMENT UNDER THE
CODE. ALL HOLDERS OF CLASS D STOCK AND POTENTIAL HOLDERS OF SPIN-OFF STOCK
SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO THE PARTICULAR CONSEQUENCES TO THEM
OF BOTH THE SPIN-OFF AND ANY TRANSACTIONS INVOLVING THE SPIN-OFF STOCK,
INCLUDING (i) THE APPLICATION OF UNITED STATES FEDERAL, STATE, AND LOCAL TAX
LAWS, AND OF FOREIGN TAX LAWS AND (ii) THE EFFECT OF CHANGES IN LAW. PKS HAS
RECEIVED CERTAIN WRITTEN ADVICE FROM THE NEBRASKA DEPARTMENT OF REVENUE
REGARDING CERTAIN NEBRASKA STATE TAX CONSEQUENCES OF BOTH THE SPIN-OFF AND
POST-SPIN-OFF TRANSACTIONS INVOLVING THE STOCK OF PKS AND MFS. FOLLOWING THE
SPIN-OFF, PKS WILL PROVIDE CERTAIN INFORMATION REGARDING THE WRITTEN ADVICE TO
HOLDERS OF CLASS D STOCK WHO RECEIVE SPIN-OFF STOCK AND EITHER ARE RESIDENTS OF
NEBRASKA OR REQUEST SUCH INFORMATION.
PKS has been advised that the Spin-off will not be a tax-free distribution
for Canadian income tax purposes, and that a holder of Class D Stock will be
required to include in income for such purposes the fair market value of the MFS
Common Stock and MFS Preferred Stock received. PKS has requested a remission
order from the Department of Finance in Canada that would remit the tax
otherwise payable by the Canadian-resident holders of the Class D Stock in
respect of this income inclusion. PKS does not know whether the requested order
will be issued, but PKS has been advised that there is a significant possibility
that it will not be issued.
CERTAIN TRANSACTIONS
INTENTIONS OF CERTAIN SIGNIFICANT STOCKHOLDERS REGARDING PARTICIPATION IN
EXCHANGE OFFER
Each of Messrs. Richard Colf, Richard Geary, Bruce Grewcock, William
Grewcock, Richard Jaros, Tait Johnson, Lee Kearney, Kenneth Stinson, and George
Toll, Jr. (I.E., the members of the PKS Board of Directors who are holders of
Class C Stock other than Messrs. Walter Scott, Jr. and Robert Julian) has
advised PKS in writing that he will not tender in the Exchange Offer any shares
of Class C Stock held by him.
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Furthermore, each of Messrs. Roy Cline, Allan Kirkwood, Ronald Minarcini,
and Thomas Stortz (I.E., the members of the KCG board of directors who are
holders of Class C Stock and who are not also directors of PKS), other than one
of such KCG directors who is anticipating retirement, has advised PKS in writing
that he will not tender in the Exchange Offer any shares of Class C Stock held
by him.
Walter Scott, Jr., the Chairman of the Board and President of PKS and a
member of the board of directors of each of KCG and MFS, has advised PKS of his
present intention to tender in the Exchange Offer 471,000 shares of the total of
1,471,000 shares of Class C Stock held by him, reflecting his assessment (based
on his assumptions as to the amount of Class C Stock to be offered for sale by
PKS and the amount of such stock to be repurchased by PKS or converted to Class
D Stock) of the number of shares of such stock he would otherwise be required to
sell to PKS, convert to Class B Stock or convert to Class D Stock within the
next few years by virtue of the percentage limitations on ownership of Class C
Stock contained in the PKS Certificate of Incorporation. The PKS Certificate of
Incorporation provides that, if for any reason a holder owns more than 10% of
the issued and outstanding shares of Class C Stock, on a fully-diluted basis, on
January 1st of any year, he must sell back to PKS or convert to Class D Stock
(or, in the case of Mr. Scott, Class B Stock or Class D Stock) that amount of
such Class C Stock which is in excess of such 10% limitation. In addition,
FirsTier Bank, N.A., the trustee under four irrevocable trusts created by Mr.
Scott for the benefit of members of his family, has preliminarily advised PKS
that it is likely, subject to its review of this Prospectus, to tender in the
Exchange Offer the 884,400 shares of Class B Stock held in the aggregate by such
trusts.
Robert Julian, who is a member of the board of directors of each of PKS and
MFS but not of KCG, has advised PKS of his current intention to tender in the
Exchange Offer all of the Class C Stock held by him, reflecting the fact that
his responsibilities with PKS relate primarily to the Diversified Group. In
addition, FirsTier Bank, N.A., the trustee under two irrevocable trusts created
by Mr. Julian for the benefit of members of his family, has preliminarily
advised PKS that it is likely, subject to its review of this Prospectus, to
tender in the Exchange Offer the 55,200 shares of Class C Stock held in the
aggregate by such trusts.
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Based on the foregoing indications of intent regarding participation in the
Exchange Offer, the following table shows the expected holdings of Class C Stock
and Class D Stock after giving effect to the consummation of the Exchange Offer
of (i) each member of the PKS Board of Directors, (ii) the PKS Directors as a
group and (iii) each person who is a director of KCG but not of PKS, as a group.
<TABLE>
<CAPTION>
PERCENT OF PERCENT OF
NUMBER OF SHARES OF NUMBER OF SHARES OF
SHARES OF CLASS C STOCK (1) SHARES OF CLASS D STOCK (1)
NAME CLASS C STOCK SCENARIO 1 SCENARIO 2 CLASS D STOCK SCENARIO 1 SCENARIO 2
--------------------------------------------- ------------- ---------- ---------- ------------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Walter Scott, Jr............................. 1,000,000 8.4 10.1 2,804,851(2) 12.4 11.9
Kenneth E. Stinson........................... 626,412 5.3 6.3 36,412(3) * *
Richard Geary................................ 528,768 4.5 5.3 161,020(4) * *
George B. Toll, Jr........................... 371,883 3.1 3.8 87,711 * *
Richard W. Colf.............................. 363,217 3.1 3.7 72,282 * *
Leonard W. Kearney........................... 264,009 2.2 2.7 172,282(5) * *
Tait P. Johnson.............................. 173,433 1.5 1.8 43,433 * *
Bruce E. Grewcock............................ 159,775 1.3 1.6 52,775 * *
Richard R. Jaros............................. 51,544 * * 101,639 * *
William L. Grewcock.......................... 22,048 * * 1,164,323 5.1 5.0
Robert E. Julian............................. -- -- -- 381,075(6) 1.7 1.6
James Q. Crowe............................... -- -- -- 134,281 * *
Robert B. Daugherty.......................... -- -- -- 9,000 * *
Charles M. Harper............................ -- -- -- 9,000 * *
Peter Kiewit, Jr............................. -- -- -- 2,000 * *
PKS Directors as a group..................... 3,559,089 30.0 36.0 5,232,084 23.2 22.3
Other KCG Directors as a group............... 388,680 3.3 3.9 159,428 * *
<FN>
------------------------
(1) Calculated assuming, in two separate scenarios, that 3,000,000 shares
(Scenario 1) and 5,000,000 shares (Scenario 2) of Exchangeable Stock and
all the Exchangeable Debentures are exchanged in the Exchange Offer.
(2) Does not include 1,950,691 shares of Class D Stock held in irrevocable
trusts for family members of Mr. Scott under which the trustee is required
to vote with the Company.
(3) Does not include 20,000 shares of Class D Stock held in trusts by Mr.
Stinson's children.
(4) Does not include 40,000 shares of Class D Stock held by Mrs. Geary.
(5) Does not include 25,231 shares of Class D Stock held by Mrs. Kearney.
(6) Does not include 78,196 shares of Class D Stock held in irrevocable trusts
for family members of Mr. Julian under which the trustee is required to
vote with the Company.
* Less than 1% of the class.
</TABLE>
OPTION AGREEMENT AMONG CERTAIN MEMBERS OF THE PKS BOARD REGARDING SPIN-OFF STOCK
Pursuant to an agreement among Richard Geary, William Grewcock and Walter
Scott, Jr., in the event the Spin-off is consummated, Mr. Geary would have the
option to sell to Messrs. Grewcock and Scott all of the shares of MFS Common
Stock and MFS Preferred Stock received by Mr. Geary in connection with the
Spin-off. Each of Messrs. Geary, Grewcock and Scott is a member of the PKS Board
of Directors and a holder of Class D Stock. Mr. Scott is also a member of the
MFS Board of Directors, and Mr. Grewcock has been nominated by management of MFS
to be elected to the MFS Board of Directors at the MFS 1995 annual meeting of
stockholders. The option is exercisable at any time within six months after the
Spin-off is consummated. The purchase price per share of such stock would be, in
the case of the MFS Common Stock, the lowest of (i) the closing price of such
stock on the date the Spin-off is consummated, (ii) the closing price of such
stock on the date on which notice of exercise of the option is delivered and
(iii) $35.00, and, in the case of the MFS Preferred Stock, $1.00
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per share. Unless Messrs. Grewcock and Scott otherwise agree, in the event the
option is exercised, they would each pay one-half of the total purchase price
and receive one-half of the stock subject to the option. Any such shares
purchased by Messrs. Grewcock and Scott would continue to be subject to the
agreements described below.
AGREEMENTS REGARDING RESTRICTIONS ON TRANSFER OF SPIN-OFF STOCK
In connection with MFS's DECS offering, each director of PKS (other than Mr.
Johnson, who was elected to the PKS Board of Directors after the closing of the
DECS offering) and each director of MFS has entered into an agreement with MFS
under which such director is committed not to sell or otherwise transfer any
shares of MFS Common Stock received by him as a result of the Spin-off
(including MFS Common Stock received upon conversion of MFS Preferred Stock
received in the Spin-off) for a period of two years after the closing of the
DECS offering (I.E., until May 24, 1997), subject to the following exceptions:
(1) After the first year, each such director and any person to whom such
director transfers shares pursuant to clauses (2) and (5) below may sell
an aggregate of 50,000 shares of such MFS Common Stock.
(2) Such MFS Common Stock may be transferred to family members or trusts for
their benefit or in connection with estate planning.
(3) Such MFS Common Stock may be pledged to third party lenders, which would
be permitted to resell such stock in the event of a default, provided
that any shares so sold by pledgees will count against the 50,000 share
limit described in clause (1) above.
(4) Such MFS Common Stock may be tendered in offers made to MFS stockholders
generally.
(5) Such MFS Common Stock may be sold to other directors of PKS or MFS.
The foregoing restrictions will not apply to MFS Common Stock distributed
with respect to shares of Class D Stock which were held as of March 31, 1995 by
(i) a trust or other entity not controlled by the director in question, or (ii)
family members of the director. Further, MFS Common Stock distributed with
respect to shares of Class D Stock pledged by the director as of such date to
third party lenders may be delivered to the pledgees and will not be subject to
the foregoing restrictions.
The restrictions imposed by the agreements are subject to waiver by MFS with
the consent of the representatives of the underwriters of the DECS offering,
which consent may not be withheld unreasonably.
CERTAIN AGREEMENTS BETWEEN PKS AND MFS
PKS and MFS have entered into certain agreements with respect to the MFS
Recapitalization, the Spin-off and the relationships between the two companies
following the Spin-off. These agreements are described below.
THE SECURITIES PURCHASE AGREEMENT. MFS and KDG have entered into a
Securities Purchase Agreement with respect to the acquisition by PKS from MFS of
the MFS Preferred Stock. Under the Securities Purchase Agreement, MFS has agreed
to effect the MFS Recapitalization by issuing to KDG, immediately before the
Spin-off, 15,000,000 shares of MFS Preferred Stock in exchange for the transfer
by KDG to MFS of 2,900,000 shares of MFS Common Stock held by KDG. The MFS
Recapitalization is subject to the approval of the MFS common stockholders. See
"The Exchange Offer -- Conditions to the Exchange Offer."
Under the Securities Purchase Agreement, KDG has agreed to grant to the
Secretary and Assistant Secretary of MFS an irrevocable proxy to vote all of the
shares of MFS Preferred Stock in proportion to the vote of the holders of MFS
Common Stock on all matters other than the election of directors and matters as
to which the holders of MFS Preferred Stock vote as a separate class under
Delaware corporation law. Holders of Class D Stock who receive MFS Preferred
Stock in the Spin-off
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will receive such MFS Preferred Stock subject to such irrevocable proxy.
Accordingly, holders of MFS Preferred Stock will have voting rights only with
respect to the election of directors of MFS and those other matters.
THE DISTRIBUTION AGREEMENT. PKS and MFS have entered into a Distribution
Agreement. The Distribution Agreement provides, among other things, for the
principal corporate transactions necessary to consummate the Spin-off, including
the MFS Recapitalization and certain corporate reorganizations by MFS necessary
to receive the Ruling. In addition, the Distribution Agreement provides that MFS
will sell to PKS 28,986 shares of MFS Common Stock immediately prior to the
Spin-off, at a price of $1,000,000 in cash (or approximately $34.50 per share).
See "Overview -- The Spin-off."
PKS and MFS entered into a Noncompetition Agreement in connection with the
May 1993 initial public offering of Common Stock by MFS (the "MFS IPO"). The
Noncompetition Agreement will terminate as a result of the Spin-off. Under the
Distribution Agreement, however, PKS has represented to MFS in writing that PKS
has no present intent to engage, directly or indirectly, in the provision of
telecommunications services to business or government users, except for those
activities that are currently permitted under the Noncompetition Agreement.
Although this written assurance from PKS is contained in a written agreement,
this representation is a statement of PKS's intention at the time of the
execution of the Distribution Agreement, and there can be no assurance that PKS
will not compete directly with MFS in the provision of telecommunications
services to businesses or government users in the future.
Under the Distribution Agreement and subject to the terms of the agreements
described under " -- Agreements Regarding Restrictions on Transfer of Spin-off
Stock" above, MFS has agreed to grant to Walter Scott, Jr. and William Grewcock
certain registration rights with respect to all the MFS Common Stock held by
them after the Spin-off, exercisable at their expense, similar to those granted
to KDG by MFS pursuant to a registration rights agreement entered into between
KDG and MFS in connection with the MFS IPO. See "The Spin-off -- Listing and
Trading of Spin-off Stock -- MFS Common Stock."
The Distribution Agreement provides that each of PKS and MFS will be granted
access to certain records and information in the possession of the other
company, and requires that each of PKS and MFS retain all such information in
its possession for a period of five years following the Spin-off. Under the
Distribution Agreement, each company is required to give the other company prior
notice of any intention to dispose of any such information.
The Distribution Agreement provides that, except for the expenses of
registration of the Offered Stock and Spin-Off Stock under the Securities Act,
which will be paid by PKS, and except as otherwise set forth in the Distribution
Agreement or in any related agreement, all costs and expenses in connection with
the Spin-off will be paid by the party incurring such expenses. Any expenses
that cannot be allocated on such basis will be split equally between PKS and
MFS.
The Distribution Agreement provides that PKS has no obligation to consummate
the MFS Recapitalization or to consummate the Spin-off.
RECENT DEVELOPMENTS
WHITNEY LITIGATION
In 1974, a subsidiary of PKS ("Kiewit"), entered into a lease with Whitney
Benefits, Inc., a Wyoming charitable corporation ("Whitney"). Whitney is the
owner, and Kiewit is the lessee, of a coal deposit underlying a 1,300 acre tract
in Sheridan County, Wyoming. The coal was rendered unmineable by the Surface
Mining Control and Reclamation Act of 1977 ("SMCRA"), which prohibited surface
mining of coal in certain alluvial valley floors significant to farming. In
1983, Kiewit and Whitney filed an action in the U.S. Court of Federal Claims
("Claims Court"), alleging that the enactment of SMCRA constituted a taking of
their coal without just compensation. In 1989, the Claims Court ruled that a
taking had occurred and awarded plaintiffs the 1977 fair market value of the
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<PAGE>
property ($60 million) plus interest. In 1991, the U.S. Supreme Court denied
certiorari. The government filed two post-trial motions in the Claims Court
during 1992. The government requested a new trial to redetermine the 1977 value
of the property. The government also filed a motion to reopen and set aside the
1989 judgment as void and to dismiss plaintiffs' complaint for lack of
jurisdiction. In May 1994, the Claims Court entered an order denying both
motions. In February 1994, the Claims Court issued an opinion which provided
that the $60 million judgment would bear interest compounded annually from 1977
until payment. The government appealed the February 1994 and May 1994 orders. A
hearing on the appeals was held in February 1995.
On May 5, 1995, the government and the plaintiffs entered into a settlement
agreement. In settlement of all claims the government will pay plaintiffs $200
million and plaintiffs will deed the coal underlying the real property to the
government. Kiewit and Whitney agreed in 1992 that Kiewit would receive 67.5
percent of any award and Whitney would receive the remainder. In accordance with
this agreement, Peter Kiewit Sons' Co., a subsidiary of KDG, received a cash
payment of approximately $135 million on June 2, 1995. The after-tax effect of
such payment will be to increase the Class D Per Share Price, effective
beginning on January 1, 1996, by approximately $3.50 over the Class D Per Share
Price that otherwise would have been in effect for 1996. The settlement will not
affect the Class D Per Share Price in effect for the remainder of 1995.
DECS OFFERING
Pursuant to the DECS offering, MFS issued 9,500,000 Depositary Shares, each
representing an interest in the DECS. The Depositary Shares were sold at an
issue price of $33.50 per share. Each such Depositary Share is automatically
convertible on June 15, 1999, if not previously redeemed by MFS or converted at
the option of the holder (as described below), into one share of MFS Common
Stock; provided, however, that if the Spin-off is not consummated prior to
January 1, 1997, each outstanding Depositary Share is automatically convertible
into 1.05 shares of MFS Common Stock subject, in each case, to adjustment upon
the occurrence of certain events. The DECS (and the related Depositary Shares)
are redeemable, in whole or in part, at the option of MFS on or after June 15,
1998 but before June 15, 1999 at the call price in effect on the date of
redemption divided by the then-current market price of MFS Common Stock, payable
in shares of MFS Common Stock. The DECS (and thereby the Depositary Shares) are
convertible, in whole or in part, at the option of the holder of the Depositary
Shares at any time prior to June 15, 1999 (unless previously redeemed) into .820
shares of MFS Common Stock per Depositary Share (reflecting an initial
conversion premium of 22% to the market price of the MFS Common Stock), subject
to adjustment upon the occurrence of certain events. However, if the holder
converts on or after January 1, 1997 and the Spin-off is not consummated prior
to such date, the holder will receive .855 shares of MFS Common Stock per
Depositary Share (reflecting a decreased premium of 17% to the market price of
the MFS Common Stock at the date of issuance of the DECS), subject to adjustment
upon the occurrence of certain events.
Dividends on the Depositary Shares are cumulative and are payable in either
cash or shares of MFS Common Stock at the option of MFS. The DECS rank prior to
the MFS Common Stock and the MFS Preferred Stock with respect to payment of
dividends and on a parity with the MFS Preferred Stock upon liquidation. The
Depositary Shares have qualified for inclusion in the Nasdaq National Market.
AUTHORIZATION OF PREFERRED STOCK OF MFS
Under the terms of the MFS certificate of incorporation, the MFS Board of
Directors is authorized, subject to any limitations prescribed by law, without
stockholder approval, to issue shares of preferred stock in one or more series.
Each such series of preferred stock shall have such rights, preferences,
privileges and restrictions, including voting rights, dividend rights,
conversion rights, redemption privileges and liquidation privileges, as shall be
determined by the MFS Board of Directors. At a meeting of the MFS Board of
Directors on April 26, 1995, the MFS Board approved, and resolved to submit to
the MFS stockholders for approval at the 1995 MFS annual stockholders meeting
which is presently expected to be held on [August ], 1995, a proposal to
increase the number of authorized shares of preferred stock from 1,000,000 to
25,000,000.
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The purpose of authorizing the MFS Board of Directors to issue preferred
stock and to determine its rights and preferences is to eliminate delays
associated with a stockholder vote on specific issuances. The issuance of
preferred stock, while providing flexibility in connection with possible
acquisitions and other corporate purposes, could make more difficult or
discourage the removal of MFS's management or could have the effect of making it
more difficult for a third party to acquire, or of discouraging a third party
from acquiring, a majority of the outstanding voting stock of MFS. If the MFS
Recapitalization is approved by a majority of the common stockholders of MFS
present in person or by proxy and voting at the 1995 MFS annual stockholders
meeting and subsequently consummated, 15,000,000 shares of MFS Preferred Stock
will be issued to KDG and distributed to holders of Class D Stock in the
Spin-off.
CORPORATE GOVERNANCE OF MFS
At a meeting of the MFS Board of Directors on April 26, 1995, the MFS Board
approved, and resolved to submit to the stockholders of MFS for approval at the
1995 annual meeting of MFS stockholders, certain amendments to the MFS
certificate of incorporation, which include proposals to: amend the MFS
certificate of incorporation to divide the MFS Board of Directors into three
classes, prohibit stockholders of MFS from taking action by written consent;
require that special meetings of stockholders be called only by the MFS Board or
the chairman of the MFS Board; and require the affirmative vote of at least
66 2/3% of the outstanding shares of stock of MFS entitled to vote thereon to
adopt, repeal, alter, amend or rescind the by-laws of MFS. PKS has agreed that,
if the MFS Recapitalization is approved by the non-PKS holders of MFS Common
Stock as described herein, PKS will vote all of the shares of MFS Common Stock
owned or controlled by it in favor of the proposed amendments, thus assuring
their adoption. In addition, at its April 26, 1995 meeting, the MFS Board of
Directors adopted certain amendments to the by-laws of MFS that prescribe
specific procedural requirements for the nomination of directors and the
introduction of business by a stockholder of record at an annual meeting of
stockholders where such business is not specified in the notice of meeting or
brought by or at the direction of the board of directors. The MFS Board of
Directors also plans to consider in the near future the adoption of a
shareholder rights plan. Notwithstanding the receipt of the requisite
stockholder approval or further approval of the MFS Board, each of the proposed
amendments to the MFS certificate of incorporation and the MFS by-laws, as well
as the shareholder rights plan, would be implemented only upon consummation of
the Spin-off.
Each of the foregoing proposals could make more difficult or discourage the
removal of MFS's management or could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from acquiring, a
majority of the outstanding voting stock of MFS for the purpose of a hostile
takeover. The intent of the measures adopted by the MFS Board of Directors,
however, is not to prevent an acquisition. If an offer were to be made, these
measures are designated to require potential acquirers to make financially
attractive non-coercive offers that treat all stockholders fairly, to guard
against share accumulations in which control of MFS could pass to one or a group
of stockholders without paying a control premium to the others, and to provide
the MFS Board of Directors with sufficient time to consider any and all
alternatives for maximizing stockholder value.
CALIFORNIA ANNOUNCEMENT
On July 27, 1995, MFS announced that it had applied to the California Public
Utilities Commission for a certificate authorizing MFS Intelenet to provide the
full range of competitive local telephone exchange services. At this time, it is
not possible to assess the full effect of the determination by the State of
California's Public Utilities Commission to open the State's local telephone
service market to "full" competition, because, based upon recent regulatory
announcements in California, MFS will be able to compete only if it receives a
certificate from the California Public Utilities Commission and only after
January 1, 1996. "Full" competition is not scheduled to begin until January 1,
1997.
VENDOR FINANCING
On July 19, 1995, MFS announced the establishment of two secured credit
facilities aggregating $120 million for the purchase of certain switching
equipment. The facilities are secured by the equipment and are partially
guaranteed by the Swedish Export Credits Guarantee Board.
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DESCRIPTION OF SECURITIES
PKS STOCK
The PKS Certificate of Incorporation authorizes the Company to issue
183,250,000 shares of capital stock: 8,000,000 shares of Class B Stock;
125,000,000 shares of Class C Stock; 50,000,000 shares of Class D Stock; and
250,000 shares of no par value preferred stock.
The primary features of the Class B Stock, the Class C Stock, and the Class
D Stock are described below. The Class B Stock has the attributes of the Class C
Stock, with two exceptions: (a) the Class B Stock does not have voting power,
unless required by law, and (b) the PKS Board may redeem all of the Class B
Stock at any time with payment at a price equal to the Class B&C Per Share
Price. For purposes of discussing their common attributes, the Class B Stock and
the Class C Stock are referred to herein collectively as the "Class B&C Stock."
VOTING. The PKS Certificate of Incorporation provides that holders of Class
C Stock and Class D Stock have one vote per share on all matters submitted to
stockholders, except that, with respect to the election of directors, holders of
Class C Stock have cumulative voting rights. Cumulative voting means that a
stockholder may (i) give one nominee as many votes as the number of directors to
be elected multiplied by the number of such stockholder's shares or (ii) may
distribute such stockholder's votes among some or all of the director nominees.
Class D directors are elected separately by the holders of Class D Stock by the
plurality voting method. In plurality voting, a stockholder may vote the full
number of such stockholder's shares for as many nominees as there are directors
to be elected. Under both methods, after the voting is closed, the nominees are
ranked in order of the number of votes received by each nominee. The highest
ranking nominees are elected until the number of open directorships is filled.
The PKS Certificate of Incorporation provides that certain corporate actions
must be approved by the holders of at least 80% of the outstanding shares of
Class C Stock and at least a majority of all the outstanding shares having the
power to vote (I.E., the Class C Stock and the Class D Stock). Such actions are:
(1) the sale of all or substantially all of the Company's assets; (2) the merger
with other corporations, other than majority-owned subsidiaries of the Company;
(3) the dissolution of the Company; (4) the creation of new classes of stock of
the Company; (5) an increase or decrease in the number of authorized shares of
any class of stock of the Company; (6) a change in the rights, preferences and
limitations of any class of stock of the Company; (7) a change in the method of
determination of the Class B&C Formula Value or the Class B&C Per Share Price;
and (8) the sale of Class B Stock and Class C Stock to non-employees, including,
but not limited to, in the case of a public offering. With respect to item (5)
above, Delaware law requires that the holders of at least a majority of the
outstanding shares of Class D Stock approve separately an increase or decrease
in the number of authorized shares of Class D Stock. The Certificate of
Incorporation, however, specifically provides that an increase in the number of
authorized shares of Class C Stock does not require the separate approval of the
holders of Class D Stock. In addition, with respect to item (6) above, the
separate approval of at least a majority of the outstanding shares of Class D
Stock entitled to vote thereon would be required under Delaware law to change
the rights, preferences and limitations of the Class D Stock in a manner that
would adversely affect the Class D Stock. Any changes in the method of
determination of the Class D Formula Value or the Class D Per Share Price
require approval by at least 80% of the outstanding shares of Class C Stock and
Class D Stock entitled to vote thereon, voting separately.
Amendments to the PKS Certificate of Incorporation, as well as amendments to
the by-laws of the Company, require the approval of 66 2/3% of the holders of
Class C Stock voting as a separate class, as well as the approval of a majority
of the combined voting classes except as otherwise described above and except
with respect to any provisions containing a supermajority voting requirement,
which may be amended only upon the approval of a matching supermajority vote.
Therefore, if the PKS Certificate of Incorporation provides that a corporate
action must be approved by 80% of the holders of
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Class C Stock and a majority of the holders of Class C Stock and Class D Stock,
such provision can be amended only by the approval of 80% of the holders of
Class C Stock and a majority of the holders of Class C Stock and Class D Stock.
The holders of Class C Stock and the holders of Class D Stock shall vote
together as a combined class on all other matters to be voted on by the holders
of common stock, with each share of Class C Stock having one vote and each share
of Class D Stock having one vote.
THE PKS BOARD OF DIRECTORS. The PKS Certificate of Incorporation contains
provisions relating to the number of, the nomination procedures regarding, and
the qualifications of the directors of the Company and provides for a
"classified" board of directors.
The members of the PKS Board are "classified" as Class C directors or Class
D directors. The Class C directors are elected separately by the holders of
Class C Stock, and the Class D directors are elected separately by the holders
of Class D Stock. The sitting PKS Board may fix, from time to time by its own
resolution, the number of directors required to serve on the PKS Board of
Directors. The PKS Certificate of Incorporation provides that at any time, the
PKS Board must consist of at least 9, but not more than 15, directors. The
holders of Class C Stock elect that number of directors that equals two-thirds
of the total number of directors comprising the PKS Board at any time. The
remaining directors are elected by the holders of Class D Stock. Prior to each
annual meeting of PKS stockholders, the incumbent Class C directors nominate a
successor slate of Class C directors, and the incumbent Class D directors
separately nominate a successor slate of Class D directors.
The PKS Certificate of Incorporation also provides that at least 80% of the
Class C directors must be "inside" directors. To be eligible to be elected as an
"inside" Class C director, a person must: (a) be a Class C stockholder; (b) be
an officer of the Company or one of its majority-owned subsidiaries which is
engaged in the construction or mining business; and (c) have been employed by
the Company or such subsidiary for a full eight years prior to being nominated
as a Class C director. If such an "inside" director later ceases to meet all the
requisite qualifications, thereby causing the "inside" Class C directors to be
less than 80% of the entire Class C directors, the other Class C directors may
retain such director under certain specified circumstances. Any vacancies in
Class C or Class D directorships for any reason, including but not limited to
removal by the holders of Class C Stock or Class D Stock as the case may be,
will be filled by the remaining Class C or Class D directors, respectively.
The PKS Certificate of Incorporation provides that most PKS Board actions
require the approval of a majority of the members of the entire PKS Board,
except for certain matters which require the approval of two-thirds of the
members of the PKS Board of Directors.
DIVIDENDS. Holders of the several classes of PKS common stock are entitled
to dividends when, as and if declared by the PKS Board, but only after provision
is made for any dividends declared on any PKS preferred stock. Dividends on the
Class D Stock will be payable only out of the Available Class D Dividend Amount;
dividends on the Class B&C Stock will be payable only out of the amount legally
available therefor, less the Available Class D Dividend Amount.
Subject to the limitations set forth above, the PKS Board may at any time,
in its sole discretion, declare and pay dividends on the Class B Stock and the
Class C Stock only, on the Class D Stock only, or on the Class B Stock, the
Class C Stock and the Class D Stock in equal or unequal amounts. However, any
dividends per share declared and paid on the Class B Stock and the Class C Stock
must be in equal amounts. See "-- Equalizing Stock Dividends," below.
LIQUIDATION. Upon the liquidation or dissolution of the Company, whether
voluntary or involuntary, the PKS Certificate of Incorporation provides that any
funds remaining for distribution to the holders of common stock shall be
distributed as described below. The PKS Board of Directors shall determine the
value of the remaining assets and shall allocate such value to a "D Liquidation
Account" and a "B&C Liquidation Account." Allocation to the D Liquidation
Account shall be in an amount equal to the value of the Diversified Group assets
plus an amount equal to 50% of the
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aggregate stockholders' equity (whether positive or negative) of PKS and any
non-operating subsidiaries of PKS. Allocation to the B&C Liquidation Account
shall be in an amount equal to the value of the remaining assets. The PKS Board
shall then make distributions as follows:
(a) First, each holder of Class B&C Stock shall be paid a liquidation
preference in an amount equal to $1.00 per share. The aggregate amount of
such payments shall be deducted from the B&C Liquidation Account. To the
extent that the initial B&C Liquidation Account is not sufficient to
distribute $1.00 per share, the amount required to reach the Class B&C
liquidation preference of $1.00 per share shall be deducted from the D
Liquidation Account.
(b) Second, each holder of Class D Stock shall be paid a liquidation
preference in an amount equal to $2.00 per share. The aggregate amount of
such distribution shall be deducted from the D Liquidation Account remaining
after any deductions described in paragraph (a) above. To the extent that
the D Liquidation Account is not sufficient to satisfy the aggregate amount
of the Class D liquidation preference payments, an amount necessary to reach
such liquidation preference may be deducted from any remaining balance in
the B&C Liquidation Account.
(c) If, after satisfying the liquidation preferences specified in
paragraphs (a) and (b) above, a balance remains in the D Liquidation
Account, an amount equal to that balance shall be distributed pro rata to
the holders of Class D Stock. Similarly, if a balance remains in the B&C
Liquidation Account, an amount equal to that balance shall be distributed
pro rata to the holders of Class B&C Stock.
Any determination by the PKS Board of Directors of asset values for
liquidation purposes shall be final and may be based on the books and records of
the Company. The PKS Certificate of Incorporation does not require the PKS Board
to obtain appraisals or independent audits in connection with such
determination.
OWNERSHIP AND TRANSFER RESTRICTIONS. The PKS Certificate of Incorporation
contains no ownership or transfer restrictions with respect to the Class D
Stock. Furthermore, purchasers of Class D Stock are not required to execute
repurchase agreements as a condition to such purchase.
Class B&C Stock may be owned only by employees of the Company and, with
prior PKS Board approval, by certain authorized transferees of such employees
(I.E., fiduciaries for the benefit of members of the immediate families of
employees, corporations wholly owned by employees or employees and their spouses
and/or children, fiduciaries for the benefit of such corporations, charities,
and fiduciaries for charities designated by any such persons). Under the PKS
Certificate of Incorporation, an employee of a subsidiary of which the Company
owns at least a 20 percent equity interest (or any joint venture in which the
Company and/or such subsidiary owns at least a 20 percent equity interest), is
deemed to be an employee for purposes of Class B Stock and Class C Stock
ownership and the attendant transfer restrictions. A director who is a former
employee may continue to own Class B Stock and Class C Stock. No more than ten
percent of the total Class C Stock may be owned by any one employee and certain
transferees at any time. Walter Scott, Jr., Chairman of the Board and Chief
Executive Officer of PKS, and his authorized transferees may hold no more than
15% of the combined Class B Stock and Class C Stock outstanding at any time.
REPURCHASE AGREEMENT. Each holder of Class C Stock is required to execute a
repurchase agreement which provides that a stockholder may offer to sell all or
part of the Class C Stock owned by such stockholder to the Company at any time
at the Class B&C Per Share Price and that the Company must accept any such
offer, with payment to be made within 60 days after the receipt of notice of the
offer and of the stock certificates offered by the stockholder. Upon the tender
of a part of such stockholder's shares of Class C Stock, the Company may, at its
option, require the stockholder to sell all of the Class C Stock held by such
stockholder back to the Company. Under the repurchase agreement, the employee
may not transfer the shares of Class C Stock held by such employee except in a
sale to the
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Company or a transfer to an authorized transferee (I.E., a charity, etc.). Upon
the death, termination or retirement of such employee, all Class C Stock held by
the employee and by such employee's authorized transferees must be sold back to
the Company.
Under the repurchase agreement, an attempted prohibited transfer, whether
voluntary or involuntary, is deemed to constitute an offer by the employee-owner
which triggers the Company's duty to repurchase. The attempted transferor or
attempted transferee then receives cash payment at the Class B&C Per Share Price
and is deemed to have tendered the stock, which is treated as cancelled. An
attempted prohibited transfer during a suspension of repurchase duties would be
treated as an involuntary transfer. The sale and purchase event would be deemed
complete, but payment would be deferred. See additional discussion under "--
Repurchase Duties," below.
REPURCHASE OF EXCESSIVE STOCK. Upon a determination by the PKS Board of
Directors that the amount of Class C Stock held by an employee and/or the
employee's authorized transferee is excessive in view of the Company's policy
that the level of an employee's Class C Stock ownership should reflect certain
factors, including but not limited to (a) the relative contribution of that
employee to the economic performance of the Company, (b) the effort being put
forth by such employee, and/or (c) the level of responsibility of such employee,
the Company has the option to repurchase from the employee or the employee's
authorized transferee an amount of stock that the PKS Board of Directors, in its
discretion, believes is appropriate.
VOTING LIMITATION. If at any time a stockholder who owns ten percent or
more of the outstanding Class C Stock also owns 50 percent or more of the
outstanding Class D Stock, the stockholder will lose the voting power related to
such Class C Stock. Voting power will be restored when the stockholder's
holdings of Class D Stock are reduced below the 50 percent level or when the
stockholder's holdings of Class C Stock are reduced below the ten percent level.
CLASS D FORMULA VALUE. The Class D Formula Value is an amount equal to (a)
the aggregate stockholders' equity of the entities comprising the Diversified
Group (as shown on the consolidated balance sheet contained in the audited
consolidated financial statements of the Diversified Group) as of the end of the
preceding fiscal year, plus (b) 50% of the aggregate stockholders' equity
(whether positive or negative) of PKS (and any non-operating subsidiaries).
CLASS D PER SHARE PRICE. The Class D Per Share Price is determined by
increasing the Class D Formula Value by the portion of the face amount of any
outstanding debentures convertible into Class D Stock on the date of
determination. The resulting amount is then divided by the sum of (x) the total
number of shares of Class D Stock issued and outstanding at the end of the
fiscal year and (y) the total number of shares reserved for the conversion of
convertible debentures attributable to the Diversified Group outstanding at the
end of the fiscal year. This quotient is rounded to the nearest $0.05 and then
reduced by the amount of dividends declared on each share of Class D Stock since
the end of the prior fiscal year.
CLASS B&C FORMULA VALUE. The Class B&C Formula Value is an amount equal to
(a) the total stockholders' equity of the Company (as shown on the consolidated
balance sheet, and any redeemable stock not reflected in stockholders' equity,
contained in the audited consolidated financial statements of the Company and
its consolidated subsidiaries) as of the end of the preceding fiscal year, LESS
(b) the sum of (i) the book value of the property, plant and equipment that are
utilized or associated with the Company's ordinary and regular course
construction activities, (ii) the book value of any preferred stock and related
dividends, and (iii) the Class D Formula Value.
CLASS B&C PER SHARE PRICE. The Class B&C Per Share Price is determined by
increasing the Class B&C Formula Value by the portion of the face amount of any
outstanding debentures convertible into Class C Stock, determined as of the
prior fiscal year end. The resulting amount is then divided by the sum of (x)
the number of shares of Class B Stock and Class C Stock issued and outstanding
as of the prior fiscal year end and (y) the number of shares of Class C Stock
reserved for the conversion of
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outstanding debentures into Class C Stock as of the prior fiscal year end. This
quotient is rounded to the nearest $.05 and then reduced by the amount of
dividends declared on each share of Class D Stock since the prior fiscal year.
REPURCHASE DUTIES. Holders of Class B&C Stock may, at any time on or before
the fifteenth day of any calendar month, offer to sell part or all of their
Class B&C Stock to the Company at the Class B&C Per Share Price by delivering
the certificate(s) representing such stock to the Company, along with a written
notice offering such stock to the Company. Such offer must be accepted by the
Company, and payment made for such stock (without interest), within 60 days
after the receipt of such certificate(s) and such written notice by the Company.
Similarly, prior to the time the Class D Stock becomes Publicly Traded, holders
of Class D Stock may, at any time on or before the fifteenth day of any calendar
month, offer to sell all or part of their Class D Stock to the Company at the
Class D Per Share Price by delivering the certificate(s) representing such stock
to the Company, along with written notice offering such stock to the Company.
Such offer must be accepted by the Company, and payment made for such stock
(without interest), within 60 days after receipt of such certificate(s) and such
written notice by the Company.
The PKS Board of Directors may suspend the Company's duty to repurchase
Class B&C Stock upon its determination that the Class B&C Formula Value to be
determined at the end of the current fiscal year is likely to be less than an
amount equal to the Class B&C Formula Value determined at the end of the prior
fiscal year less the aggregate amount of dividends declared on the Class B&C
Stock during the current year. The suspension period shall not last more than
one year from the date of the PKS Board's declaration of suspension. During the
suspension period, PKS shall not accept any offer to repurchase Class B&C Stock,
if such offer is made voluntarily by a stockholder. During such suspension
period, the Company must continue to repurchase the Class B&C Stock from
stockholders upon termination of employment, death, or in the event of other
involuntary transfers, but (a) payment for such repurchases shall not be
required until after the end of the suspension period, (b) such payment shall be
made without interest, and (c) the repurchase price shall be the Class B&C Per
Share Price determined as of (i) the end of the prior fiscal year, in the case
of a suspension period that ends before July 1 of the fiscal year (provided that
such computation of the Class B&C Per Share Price shall be reduced by the amount
of dividends per share declared on the Class B&C Stock since the end of the
prior fiscal year), or (ii) in the case of a suspension period that ends after
June 30 of a fiscal year, the end of the fiscal year during which the suspension
period ends.
The PKS Certificate of Incorporation contains a similar provision applicable
to the Class D Stock, which is triggered upon a PKS Board determination of a
probable decline in the Class D Formula Value. The suspension provision
applicable to the Class D Stock differs from the provision applicable to the
Class B&C Stock because terminating employees holding Class D Stock are not
required to sell such shares back to the Company, nor is the Company under a
duty to repurchase such shares upon such termination. The PKS Board may suspend
the repurchase duties as to Class D Stock only, Class B&C Stock only, or as to
both classes. The PKS Board may also differentiate between Class B&C Stock and
Class D Stock as to the duration of the suspension periods.
LIMITATION ON CASH REPURCHASE DUTIES -- CLASS D STOCK. For various reasons,
the PKS Board may determine that it is in the best interest of the Company to
limit the amount of cash the Company expends in a given year to satisfy its duty
to repurchase Class D Stock. Accordingly, the PKS Certificate of Incorporation
contains provisions under which the obligation of the Company to repurchase
Class D Stock for cash may be limited after the Company has in any fiscal year
purchased shares of Class D Stock tendered to the Company in an amount equal to
ten percent of the number of shares of Class D Stock outstanding at the end of
the prior fiscal year (the "Ten Percent Threshold"). During a given fiscal year,
until the Ten Percent Threshold is reached and subject to the suspension
provisions described under "Suspension of Repurchase Duties," the Company must
repurchase all shares of Class D Stock tendered to the Company. After the Ten
Percent Threshold is reached, the PKS Board may declare that further cash
repurchases will be limited. To enforce this limitation, the following rules are
embodied in the Certificate of Incorporation. First, shares of Class D Stock may
be tendered
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to the Company for repurchase only during the first 15 days of each calendar
month. Second, if the number of shares tendered exceeds the Ten Percent
Threshold and the PKS Board declares before the end of the month that further
cash payments are not in the best interest of the Company, then the PKS Board
shall also declare that as to the shares already tendered, a certain portion of
the shares tendered by each stockholder shall be purchased, with payment in
cash, and the remainder of such shares shall be purchased, but with payment by
promissory note. In setting the proportion of shares to be purchased for cash,
the PKS Board may set the proportion so that the cumulative shares sold during
the fiscal year is equal to the Ten Percent Threshold or the PKS Board may set
some higher proportion. The promissory notes shall have a maturity date not
later than 24 months after the date of tender. The PKS Board shall determine the
interest rate and other terms of the notes (including the Company's prepayment
rights). The PKS Board may establish different terms for notes applicable to
later tender dates. Each stockholder who would otherwise receive a note in
payment for the purchase of certain shares may instead elect to withdraw the
tender of those shares. The stockholder may not withdraw the tender for those
shares which the Company will purchase for cash. In the remaining months of the
fiscal year after the date of the PKS Board's declaration invoking the
repurchase limitations, the Company will continue to purchase all shares
tendered (subject to the suspension provisions described above), but payment for
such shares will be in the form of promissory notes, with such terms as the PKS
Board may set, from time to time. The Company must make full payment within 60
days of the date of purchase at the applicable Class D Per Share Price, without
interest (except for interest accrued and payable under the terms of any
promissory note issued to a stockholder). The Company's repurchase duties with
respect to Class D Stock will terminate when and if the Class D Stock becomes
Publicly Traded.
CONVERSION OF CLASS B&C STOCK INTO CLASS D STOCK. Any stockholder may
convert some or all of such stockholder's shares of Class B Stock and Class C
Stock into shares of Class D Stock by providing to the Company a written notice
(a "Conversion Notice"), together with the certificate or certificates
representing the shares tendered for conversion. The Company will accept
Conversion Notices only during the period from and including October 15 through
and including December 15 of each year. Except as provided below, the conversion
shall be effective on January 1 (the "Conversion Date") following the Company's
receipt of the Conversion Notice. As of the Conversion Date, the converting
stockholder shall be entitled to receive certificates representing the number of
shares of Class D Stock that bears the same ratio (the "Conversion Ratio") to
the number of shares surrendered for conversion as the Class B&C Per Share Price
at the Conversion Date bears to the Class D Conversion Price at such date. The
"Class D Conversion Price" means, (x) in the case of a Conversion Date before
the Class D Stock becomes Publicly Traded, the Class D Per Share Price as of the
Conversion Date, or (y) in the case of a Conversion Date after the Class D Stock
becomes Publicly Traded, the average trading price of the Class D Stock during
the 20 trading days prior to the Conversion Date. The Company shall issue
certificates of Class D Stock to converting stockholders promptly after the date
(the "Ratio Date") the PKS Board of Directors determines the applicable
conversion ratio. The PKS Board of Directors shall determine such conversion
ratio for the Class B&C Per Share Price and the Class D Conversion Price
promptly after the Company's consolidated financial statements for the fiscal
year ended immediately before the Conversion Date have been certified by the
Company's independent public accountants. On the Conversion Date, a converting
holder shall cease to be a holder of the converted Class B&C Stock, and shall
instead become a holder of that number of shares of Class D Stock as such holder
would have received had such conversion been based upon the Conversion Ratio in
effect as of the Ratio Date in the prior year. On the Ratio Date, such number of
shares of Class D Stock shall be adjusted automatically to the number of shares
determined on the basis of the Conversion Ratio at the Conversion Date. The
Company may, but is not required to, make additional payments to converting
holders to reflect dividends that would have been paid on any additional shares
of Class D Stock that the Company expects to issue to such holder when the
Conversion Ratio is finally determined. When such ratio is finally determined,
the Company will pay to such holder (or the holder will be required to reimburse
to the Company) any amounts necessary so
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that the total payments to the holder (after taking into account any payments to
the holder as described in the preceding sentence) reflect the amount of
dividends such holder would have received if the final Conversion Ratio had been
known at the Conversion Date.
As an alternative to the conversion described above, the Company may elect
to repurchase any shares of Class B&C Stock tendered for such conversion at the
Class B&C Per Share Price at the Conversion Date by providing written notice to
the tendering stockholder of such election not later than the Conversion Date.
The stockholder (but only if the stockholder is then an employee of the Company
or a subsidiary of which the Company owns a 20% or greater equity interest) may
withdraw the shares tendered for conversion at any time before, or within 10
days after, the Company provides written notice that it has elected to
repurchase the shares. Partial payment for such tendered shares shall be made
within 60 days after the Conversion Date, and the balance shall be paid after
the Company's financial statements are certified.
Conversion of Class B&C Stock into Class D Stock is not permitted during any
period in which the Company has suspended its repurchase obligations with
respect to Class B&C Stock or Class D Stock.
CONVERSION OF CLASS D STOCK INTO CLASS C STOCK. Until such time as the
Class D Stock becomes Publicly Traded, in connection with an annual offering of
Class C Stock to the Company's employees, an offeree, in lieu of purchasing some
or all of the offered shares, may convert, at the ratio described below, some or
all the offeree's shares of Class D Stock into not more than the number of
shares of Class C Stock offered. To exercise this right, the offeree must
provide to the Company a written notice (a "Conversion Notice"), together with
the certificate(s) representing the shares of Class D Stock tendered for
conversion. The Company will accept Conversion Notices only within 20 days after
an offer of Class C Stock is made. Upon receipt of such a Conversion Notice, the
Company shall issue to such offeree a certificate representing the number of
shares of Class C Stock that bears the same ratio to the number of shares
surrendered for conversion as the Class D Per Share Price at the date the
Company receives the Conversion Notice bears to the Class B&C Per Share Price at
such date.
EQUALIZING STOCK DIVIDENDS. The PKS Board, by a majority vote, may declare
and pay stock dividends to holders of Class C Stock in such amounts as the PKS
Board determines in its discretion to be appropriate in order that the number of
issued and outstanding shares of Class C Stock and the number of issued and
outstanding shares of Class D Stock will be approximately equal. A commensurate
stock dividend shall be paid on the Class B Stock at the same time that any
stock dividend is paid on the Class C Stock.
MANDATORY EXCHANGES. The PKS Certificate of Incorporation provides that the
PKS Board has the option to require certain exchanges of Class B&C Stock or
Class D Stock. However, neither such class may be exchanged in its entirety if
the other class has been, or is at that time being, exchanged in its entirety.
If assets and liabilities of the Construction & Mining Group are held
directly or indirectly by a wholly owned subsidiary of the Company (the
"Construction & Mining Group Subsidiary"), the PKS Board may, in its sole
discretion and by a two-thirds vote of the directors then in office, exchange
all of the outstanding shares of Class B&C Stock for all of the outstanding
shares of common stock of the Construction & Mining Group Subsidiary, on a pro
rata basis, each of which shares shall, upon such issuance, be fully paid and
non-assessable. The PKS Board may not require such an exchange unless the
Construction & Mining Group Subsidiary has adopted a certificate of
incorporation containing provisions substantially similar to the PKS Certificate
of Incorporation, but eliminating provisions applicable to the Class D Stock.
Similarly, if the assets and liabilities of the Diversified Group are held
directly or indirectly by a wholly owned subsidiary of the Company (the
"Diversified Group Subsidiary"), the PKS Board may, in its sole discretion and
by a two-thirds vote of the directors then in office, exchange all of the
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outstanding shares of Class D Stock for all of the outstanding shares of common
stock of the Diversified Group Subsidiary, on a pro rata basis, each of which
shares shall, upon such issuance, be fully paid and non-assessable.
In a second form of exchange, unless and until the Class D Stock has become
Publicly Traded, the PKS Board may, by a two-thirds vote, require at any time an
exchange of the outstanding shares of Class D Stock for shares of Class C Stock.
The number of shares of Class C Stock to be issued in such exchange shall be
determined by the ratio of the Class D Per Share Price to the Class B&C Per
Share Price. If the holder of Class D Stock is not eligible to own Class C
Stock, such holder will be paid cash, without interest, for the shares of Class
D Stock owned by such holder within 60 days after the effective date of the
exchange, at the Class D Per Share Price.
NO PREEMPTIVE RIGHTS. Neither the holders of Class B&C Stock nor the
holders of Class D Stock have any preemptive or anti-dilution rights.
PKS CONVERTIBLE DEBENTURES
In the past, the Company has offered a new series of convertible debentures
for sale each year to certain employees who the PKS Board and management
determine have contributed significantly to the growth and performance of the
Company. Each series of debentures is issued in fully registered form under an
Indenture dated July 1, 1986, between the Company and FirsTier Bank N.A. (the
"Indenture"). The Indenture is qualified pursuant to the Trust Indenture Act of
1939. The Indenture does not limit the aggregate principal amount of debentures
which may be issued and provides that debentures may be issued from time to time
in one or more series. The Company currently has outstanding convertible
debentures of the 1990 through 1994 series in the aggregate principal amount of
$7,720,000. A 1995 series of debentures providing for the issuance of a maximum
of $3,000,000 of debentures convertible into Class C Stock has been authorized
and registered with the Commission, although no debentures will be issued until
November 1, 1995.
The terms of the debentures include those stated in the Indenture and those
made a part of the Indenture by reference to the Trust Indenture Act of 1939 as
in effect on the date of the Indenture. The following is a summary of such terms
and the terms of the repurchase agreement required to be executed by the
purchaser of a debenture.
BASIC FEATURES. Each series of debentures is issued on November 1. Interest
is payable annually on November 1 of each year thereafter, and on the maturity
date, which is ten years after the date of issuance. If the debentures are
converted into the Company's common stock (see "Conversion Rights" below),
interest ceases to accrue on June 30 before the fifth year after issuance. The
debentures are unsecured obligations of the Company, and the holders thereof
rank equally with other unsecured creditors of the Company in bankruptcy. The
debentures are issued only in registered form, without coupons, in denominations
of $1,000 or any integral multiple thereof. Purchasers are required to pay a
premium of $25 for each $1,000 in principal amount of debentures purchased.
CONVERSION RIGHTS. Holders may convert the debentures into a specified
class of the Company's common stock during the month of October in the fifth
year after issuance. No other conversion period is provided for, and if the
holder does not convert such debenture to common stock during this period, the
conversion right is lost. The entire principal amount (no partial conversions
are permitted) of a debenture is convertible into whole shares of common stock
at a conversion price, which is the formula price of the underlying common stock
on the date of issuance of the debentures. A cash payment by the holder is
required upon conversion where necessary to avoid the issuance of fractional
shares. The conversion right is conditioned upon the execution by a
debentureholder of a repurchase agreement pertaining to the common stock
acquired by means of the conversion. The conversion rights will be adjusted to
reflect stock splits, stock dividends, stock reclassifications or certain
corporate reorganizations between the date of purchase of the debentures and the
date of conversion.
Each 1990 Series Class C and D Debenture is convertible into pairs of shares
of Class C Stock and Class D Stock at a conversion price of $40.45 per pair, the
formula price of common stock as of
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November 1, 1990, the date of issuance of the 1990 Series Class C and D
Debentures. Each pair consists of one share of Class C Stock and one share of
Class D Stock. The 1991 Series Class C and D Debentures is also convertible into
pairs of shares of Class C Stock and Class D Stock. The 1992 and 1994 Series
debentures are convertible only into shares of Class C Stock. In 1993, there
were separate series of debentures issued, one convertible into shares of Class
C Stock and one convertible into shares of Class D Stock. The Exchange Offer
applies only to the 1990 Series Class C and D Debentures, the 1991 Series Class
C and D Debentures and the 1993 Series Class D Debentures.
OWNERSHIP AND TRANSFER RESTRICTIONS. Sales of the debentures are
conditioned upon the execution of a repurchase agreement by the purchaser under
which the purchaser agrees not to transfer the debentures except in a sale to
the Company. The Company must purchase any debentures offered to it by
debentureholders. The repurchase agreement also provides that the debentures
must be sold back to the Company upon the death or retirement of the purchaser
of the debenture or the termination of the debentureholder's employment with the
Company. In any of the above-described circumstances, the Company will buy back
the debentures at a price equal to the principal amount thereof, together with
accrued interest from the last interest payment date to the date of such
purchase at the stated rate. No payment is made by the Company with respect to
the original bond premium. In the event the Company is offered some, but not
all, of a debentureholder's debentures, the Company may purchase all of such
holder's debentures.
REDEMPTION. Upon not less than ten days' written notice, the Company may,
at its option, redeem all (but not less than all) of the debentures of any given
series at the principal amount thereof, together with accrued interest from the
last interest payment date to the date fixed for redemption at the stated rate.
No payment is made by the Company with respect to the original bond premium. The
Company may not redeem debentures of any series during the one-month conversion
period applicable to that series.
MODIFICATION OF INDENTURE. The Indenture permits modification or amendment
thereof with the consent of the holders of not less than two-thirds in principal
amount of each series of debentures, but no modification of the terms of
payment, conversion rights, or the percentage required for modification will be
effective against any debentureholder without such holder's consent.
EVENTS OF DEFAULT AND WITHHOLDING OF NOTICE THEREOF TO
DEBENTUREHOLDERS. The Indenture provides for the following events of default
with respect to each series of the debentures: (i) failure to pay interest upon
any of the debentures of such series when due, continued for a period of 60 days
and (ii) failure to pay principal of the debentures of such series when due,
continued for a period of 60 days.
The trustee under the Indenture, within 90 days after the occurrence of a
default with respect to a particular series of debentures, is to give the
holders of debentures of such series notice of all defaults known to the
trustee, unless cured prior to the giving of such notice, provided that, except
in the case of default in the payment of principal or interest on any of the
debentures of such series, the trustee may withhold such notice if and so long
as it in good faith determines that the withholding of such notice is in the
interest of the holders of debentures of such series.
Upon the happening and during the continuance of a default with respect to a
particular series of debentures, the trustee may declare the principal of all
the debentures of such series and the interest accrued thereon due and payable,
but if the default is cured, the holders of a majority of such debentures may
waive all defaults and rescind such declaration. Subject to the provisions of
the Indenture relating to the duties of the trustee in case any such default
shall have occurred and be continuing, the trustee will be under no obligation
to exercise any of its rights or powers at the request, order or direction of
any of the debentureholders unless they shall have offered to the trustee
reasonable security or indemnity. A majority of the holders of outstanding
debentures of such series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
trustee with respect to the debentures of such series.
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THE TRUSTEE. The Company maintains a demand deposit account and conducts
routine banking business with the trustee. The Indenture contains limitations on
the right of the trustee, as a creditor of the Company under other instruments,
to obtain payment of claims in specified cases, or to realize on certain
property received in respect of any such claim as security or otherwise.
AUTHENTICATION AND DELIVERY. The debentures may be authenticated and
delivered upon the written order of the Company without any further corporate
action.
SATISFACTION AND DISCHARGE OF INDENTURE. The Indenture may be discharged
upon payment or redemption of all of the debentures or upon deposit with the
trustee of funds sufficient therefor.
MFS COMMON STOCK
The authorized number of shares of MFS Common Stock is 200,000,000. Holders
of MFS Common Stock are entitled to one vote for each share held on all matters
submitted to a vote of stockholders and do not have cumulative voting rights.
Holders of MFS Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the MFS Board of Directors out of funds legally
available therefor, subject to any preferential dividend rights of any
outstanding preferred stock issued by MFS. Upon the liquidation, dissolution or
winding up of MFS, the holders of MFS Common Stock are entitled to receive
ratably the net assets of MFS available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding preferred stock
issued by MFS. Holders of MFS Common Stock have no preemptive, subscription,
redemption or conversion rights. All the outstanding shares of MFS Common Stock
are fully paid and non-assessable. The rights, preferences and privileges of
holders of MFS Common Stock are subject to, and may be adversely affected by,
the rights of the holders of shares of any series of preferred stock issued by
MFS. The MFS Board of Directors is authorized, subject to any limitations
prescribed by law, without stockholder approval, to issue preferred stock in one
or more series. Each such series of preferred stock shall have such rights,
preferences, privileges and restrictions, including voting rights, dividend
rights, conversion rights, redemption privileges and liquidation privileges, as
shall be determined by the MFS Board of Directors.
MFS PREFERRED STOCK
Pursuant to the terms of the Certificate of Designation with respect to the
MFS Preferred Stock (the "Certificate of Designation"), each share of MFS
Preferred Stock has the right to five votes on all matters presented to the MFS
stockholders. KDG has granted to MFS an irrevocable proxy to vote all of the
shares of MFS Preferred Stock in proportion to the vote of the holders of MFS
Common Stock on all matters other than the election of MFS directors and matters
as to which holders of the MFS Preferred Stock vote as a separate class under
Delaware corporation law. The shares of MFS Preferred Stock distributed in the
Spin-off will be subject to this irrevocable proxy. The MFS Preferred Stock will
be convertible into shares of MFS Common Stock at any time after the first
anniversary of the date of issuance at a conversion price of $43.125
(representing an effective conversion rate of 0.0231884 shares of MFS Common
Stock for each share of MFS Preferred Stock converted, assuming that the MFS
Preferred Stock has a value of $1.00 per share, which is based upon the
redemption price of the MFS Preferred Stock of $1.00 per share). Dividends on
the MFS Preferred Stock will accrue at the rate of 7 3/4% per annum and will be
payable in cash. Dividends will be paid only when, as and if declared by the MFS
Board of Directors. As a result of certain restrictions on MFS's ability to pay
cash dividends that are contained in MFS's existing debt agreements, it is
currently anticipated that, in the near future, the dividends on the MFS
Preferred Stock will not be declared, but will continue to accrue. Upon
conversion, holders will be entitled to receive an amount, payable at MFS's
election in cash or shares of MFS Common Stock, equal to all accrued but unpaid
dividends in respect of the shares surrendered for conversion. If MFS elects to
pay all unpaid dividends in respect of the shares of MFS Preferred Stock
tendered for conversion in shares of MFS Common Stock, the number of shares of
MFS Common Stock to be issued in respect of these unpaid dividends will be
determined by a formula where the total amount of unpaid dividends to be paid on
each share of MFS Preferred Stock is divided by the "Fair Market Value" of a
share of MFS Common Stock. "Fair Market Value" is
78
<PAGE>
defined, in general, as (i) if the MFS Common Stock is listed on any national
securities exchange or the Nasdaq National Market, the average of the last sales
price of the MFS Common Stock for each day in the 30 trading day period prior to
the date of conversion, (ii) if the MFS Common Stock is not so listed, on the
basis of the average of the mean between the closing bid and asked prices for
the MFS Common Stock for each day in the 30 trading day period prior to the date
of conversion and (iii) if the MFS Common Stock is not so listed and if there
are no such closing bid and asked prices, on the basis of the fair market value
per share as determined by the MFS Board. The shares of MFS Preferred Stock will
be redeemable at the option of MFS at any time after the sixth anniversary of
the date of issuance at a redemption price of $1.00 per share, plus accrued and
unpaid dividends. The redemption price will be payable, at MFS's election, in
cash or shares of MFS Common Stock.
The MFS Preferred Stock cannot be sold or transferred by the recipient
thereof in the Spin-off without the consent of MFS until six years after
issuance, except (i) upon the death of the holder to such person's executors,
administrators, testamentary trustees, heirs, legatees or beneficiaries, but not
any subsequent sale or transfer by such, except in accordance with the terms of
the Certificate of Designation, (ii) to a holder's family members or a trust
created by the holder solely for the benefit of the holder's spouse, children or
other family members, but not any subsequent sale or transfer by such, except in
accordance with the terms of the Certificate of Designation; provided, such
family member or trust acknowledges in writing prior to such sale or transfer
the existence and enforceability of the irrevocable proxy described above, and
(iii) the pledge or hypothecation by a holder of the shares of MFS Preferred
Stock to secure a BONA FIDE loan to such holder from any bank, broker, insurance
company or other institution engaged in lending activities in the ordinary
course of its business; provided, however, that such lender may be required to
convert such MFS Preferred Stock into MFS Common Stock in the event of a
foreclosure action.
LEGAL MATTERS
The legality of the stock of PKS being offered in the Exchange Offer is
being passed upon for PKS by Sutherland, Asbill & Brennan. In addition, certain
U.S. tax matters are being passed upon for PKS by Sutherland, Asbill & Brennan.
The legality of the stock of MFS to be distributed by PKS in the Spin-off is
being passed upon for MFS by Willkie Farr & Gallagher, New York, New York.
EXPERTS
The consolidated financial statements of Peter Kiewit Sons', Inc., the
financial statements of the Construction & Mining Group and the financial
statements of the Diversified Group as of December 31, 1994, and December 25,
1993, and for each of the three years in the period ended December 31, 1994,
incorporated in this Prospectus by reference to the Annual Report on Form 10-K
of Peter Kiewit Sons', Inc., for the year ended December 31, 1994, have been so
incorporated in reliance on the reports of Coopers & Lybrand, L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
The consolidated financial statements of MFS Communications Company, Inc. as
of December 31, 1994 and 1993 and for each of the three years in the period
ended December 31, 1994, incorporated in this Prospectus by reference to the
Annual Report on Form 10-K of MFS Communications Company, Inc. for the year
ended December 31, 1994, have been so incorporated in reliance on the report of
Coopers & Lybrand, L.L.P., independent accountants, given on the authority of
that firm as experts in accounting and auditing.
The consolidated financial statements of Centex Telemanagement, Inc. as of
December 31, 1993 and 1992 and for the years ended December 31, 1993, 1992 and
1991, incorporated in this Prospectus by reference have been so incorporated in
reliance upon the report of KPMG Peat Marwick, LLP, independent certified public
accountants, on authority of that firm as experts in auditing and accounting.
79
<PAGE>
The balance sheets of Cylix Communications Corporation as of December 31,
1993 and 1992, and the related statements of operations, stockholder's equity
and cash flows for each of the years in the two-year period ended December 31,
1993 incorporated in this Prospectus by reference to the Current Report on Form
8-K of MFS Communications Company, Inc., dated November 2, 1994, as amended by
Form 8-K/A Amendment No. 1 on December 13, 1994, have been so incorporated in
reliance on the report of Leon Constantin & Co., independent accountants, given
on the authority of that firm as experts in accounting and auditing.
CERTAIN DEFINITIONS
AVAILABLE CLASS D DIVIDEND AMOUNT -- that amount which is the lesser of (a)
the amount legally available for dividends on PKS stock and (b) an amount equal
to (i) the Class D Formula Value minus (ii) dividends on Class D Stock declared
during the current year.
CLASS B STOCK -- the Class B Construction & Mining Group Nonvoting
Restricted Redeemable Convertible Exchangeable Common Stock of PKS, par value
$0.0625 per share.
CLASS B&C FORMULA VALUE -- the formula value, determined on an annual basis
in accordance with the Certificate of Incorporation, of the Construction &
Mining Group used as a basis for determining the Class B&C Per Share Price, as
more fully described under "Description of Securities -- PKS Stock" herein.
CLASS B&C PER SHARE PRICE -- the per share price of the Class B Stock and
Class C Stock, based on the Class B&C Formula Value, which is in accordance with
the Certificate of Incorporation applicable to PKS's purchases of Class B Stock
and Class C Stock and to the determination of the conversion ratios used in
converting Class B Stock and Class C Stock to Class D Stock and Class D Stock to
Class C Stock, as more fully described under "Description of Securities -- PKS
Stock" herein.
CLASS C STOCK -- the Class C Construction & Mining Group Restricted
Redeemable Convertible Exchangeable Common Stock of PKS, par value $0.0625 per
share.
CLASS C AND D DEBENTURES -- collectively, PKS's 1990 Series Convertible
Debentures due October 31, 2000 convertible into Class C and Class D Stock and
PKS's 1991 Series Convertible Debentures due October 31, 2001 convertible into
Class C and Class D Stock.
CLASS D DEBENTURES -- PKS's 1993 Series Class D Convertible Debentures due
October 31, 2003 convertible into Class D Stock.
CLASS D FORMULA VALUE -- the formula value, determined on an annual basis in
accordance with the Certificate of Incorporation, of the Diversified Group used
as a basis for determining the Class D Per Share Price, as more fully described
under "Description of Securities -- PKS Stock" herein.
CLASS D PER SHARE PRICE -- the per share price of the Class D Stock, based
on the Class D Formula Value, which is in accordance with the Certificate of
Incorporation applicable (prior to the time the Class D Stock becomes Publicly
Traded) to PKS's purchases of Class D Stock and to the determination of the
conversion ratios used in converting Class B Stock and Class C Stock to Class D
Stock and Class D Stock to Class C Stock, as more fully described under
"Description of Securities -- PKS Stock" herein.
CLASS D STOCK -- the Class D Diversified Group Convertible Exchangeable
Common Stock of PKS, par value $0.0625 per share.
CONSTRUCTION & MINING GROUP -- the Company's construction and certain mining
businesses.
DIVERSIFIED GROUP -- the Company's businesses other than its construction
and certain of its mining businesses.
80
<PAGE>
EXCHANGE OFFER -- the offer by PKS to exchange (i) Class D Stock for
outstanding Class B Stock and Class C Stock, (ii) Class C Stock and Class D
Stock for outstanding Class C and D Debentures, and (iii) Class D Stock for
outstanding Class D Debentures, all upon the terms and conditions contained in
this Prospectus and the Letter of Transmittal.
EXCHANGEABLE DEBENTURES -- collectively, the Class D Debentures and the
Class C and D Debentures.
EXCHANGEABLE SECURITIES -- collectively, the Exchangeable Debentures and the
Exchangeable Stock.
EXCHANGEABLE STOCK -- collectively, the shares of Class B Stock and Class C
Stock exchangeable for Class D Stock pursuant to the Exchange Offer.
GROUPS -- collectively, the Construction & Mining Group and the Diversified
Group.
KCG -- Kiewit Construction Group Inc., a Delaware corporation and a wholly
owned first-tier subsidiary of PKS.
KDG -- Kiewit Diversified Group Inc., a Delaware corporation and a wholly
owned first-tier subsidiary of PKS.
LETTER OF TRANSMITTAL -- a letter sent to all holders of Exchangeable
Securities which sets forth certain terms and conditions of the Exchange Offer
and which must be signed by a holder of Exchangeable Securities and returned to
PKS by the Expiration Date in order to validly tender Exchangeable Securities.
Separate forms of such letters will be sent to (i) holders of Class B Stock,
(ii) holders of Class C Stock and (iii) holders of Exchangeable Debentures.
MFS -- MFS Communications Company, Inc., a Delaware corporation.
MFS BOARD OR MFS BOARD OF DIRECTORS -- the board of directors of MFS as
constituted from time to time.
MFS COMMON STOCK -- the common stock of MFS, par value $.01 per share.
MFS PREFERRED STOCK -- the Series B convertible preferred stock of MFS, par
value $.01 per share, issuable in connection with the MFS Recapitalization.
MFS RECAPITALIZATION -- the transfer by KDG of 2,900,000 shares of MFS
Common Stock to MFS in exchange for 15,000,000 shares of MFS Preferred Stock,
all as described in this Prospectus.
OFFERED STOCK -- shares of Class C Stock and Class D Stock issuable in
exchange for Exchangeable Securities pursuant to the Exchange Offer.
PKS OR THE COMPANY -- Peter Kiewit Sons', Inc., a Delaware corporation.
PKS BOARD OR PKS BOARD OF DIRECTORS -- the board of directors of PKS as
constituted from time to time.
PKS CERTIFICATE OF INCORPORATION -- the Restated Certificate of
Incorporation of PKS as in effect on the date of this Prospectus.
PUBLICLY TRADED -- the Class D Stock shall be "Publicly Traded" from and
after that point in time at which the Class D Stock is listed or quoted on any
national securities exchange or Nasdaq or the PKS Board of Directors has
determined that the Class D Stock is otherwise publicly traded.
SPIN-OFF -- the dividend distribution by PKS of all of the shares of MFS
Common Stock and MFS Preferred Stock held by PKS to holders of Class D Stock as
of the Spin-off Date, all as described in this Prospectus.
SPIN-OFF STOCK -- shares of MFS Common Stock and MFS Preferred Stock
received by holders of Class D Stock in the Spin-off.
81
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<S> <C>
Report of Independent Accountants for Peter Kiewit Sons', Inc. and Subsidiaries............................................. F-3
Peter Kiewit Sons', Inc. and Subsidiaries Pro Forma Consolidated Condensed Statement of Operations.......................... F-4
Peter Kiewit Sons', Inc. Pro Forma Consolidated Condensed Balance Sheet..................................................... F-6
Report of Independent Accountants for Kiewit Construction & Mining Group.................................................... F-10
Peter Kiewit Construction and Mining Group Pro Forma Condensed Statements of Operations..................................... F-11
Peter Kiewit Pro Forma Condensed Balance Sheet.............................................................................. F-13
Report of Independent Accountants for Kiewit Diversified Group.............................................................. F-17
Peter Kiewit Diversified Group Pro Forma Condensed Statements of Operations................................................. F-18
Peter Kiewit Pro Forma Condensed Balance Sheet.............................................................................. F-20
</TABLE>
F-1
<PAGE>
PRO FORMA FINANCIAL INFORMATION
The pro forma financial information of PKS, Kiewit Construction & Mining
Group and Kiewit Diversified Group, respectively, has been prepared to give
effect, as further described below, to the MFS Recapitalization, the Exchange
Offer and the Spin-off (together, the "Transactions"). The pro forma financial
information assumes, in two separate scenarios, that 3 million (Scenario 1) and
5 million (Scenario 2) shares of Exchangeable Stock and all the Exchangeable
Debentures are exchanged in the Exchange Offer as described herein. Scenario 1
reflects PKS's estimate of the number of shares of Exchangeable Stock likely to
be tendered in the Exchange Offer, based upon the tender indications that PKS
has received from members of the PKS Board of Directors and members of the KCG
Board of Directors, and PKS's estimates of the likely number of additional
tenders. Scenario 2 is set forth solely to illustrate the impact of the tender
of substantially more shares than anticipated by PKS. PKS does not believe that
a tender of 5,000,000 shares is likely.
The pro forma condensed statements of operations for the three months ended
March 31, 1995 and for the year ended December 31, 1994, of PKS, Kiewit
Construction & Mining Group and Kiewit Diversified Group assume that the
Transactions were consummated on January 1, 1995 and December 26, 1993,
respectively. The condensed balance sheets of PKS and the respective Groups as
of March 31, 1995 assume that the Transactions were consummated as of such date.
The pro forma financial information is not intended to reflect results of
operations or the financial position of PKS, Kiewit Construction & Mining Group
or Kiewit Diversified Group, which actually would have resulted had the
Transactions been effected on the dates indicated. Moreover, the pro forma
information is not intended to be indicative of future results of operations or
financial position of PKS, Kiewit Construction & Mining Group or Kiewit
Diversified Group.
The pro forma financial information should be read in conjunction with PKS',
Kiewit Construction & Mining Group's and Kiewit Diversified Group's historical
financial statements, and the notes thereto, contained in PKS' Annual Report on
Form 10-K for the year ended December 31, 1994 and selected exhibits thereto and
Quarterly Report on Form 10-Q for the quarter ended March 31, 1995 and selected
exhibits thereto, all of which are incorporated herein by reference.
F-2
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders
Peter Kiewit Sons', Inc.
We have examined the pro forma adjustments reflecting the transactions
described in the accompanying notes and the application of those adjustments to
the historical amounts in the accompanying pro forma consolidated condensed
statement of operations of Peter Kiewit Sons', Inc. for the year ended December
31, 1994. The pro forma consolidated condensed statement of operations is
derived from the historical financial statements of Peter Kiewit Sons', Inc. and
Subsidiaries, which were audited by us, incorporated by reference herein. Such
pro forma adjustments are based upon management's assumptions described in the
accompanying notes. Our examination was made in accordance with standards
established by the American Institute of Certified Public Accountants and,
accordingly, included such procedures as we considered necessary in the
circumstances.
In addition, we have reviewed the related pro forma adjustments and the
application of those adjustments to the historical amounts in the accompanying
pro forma consolidated condensed balance sheet of Peter Kiewit Sons', Inc. and
Subsidiaries as of March 31, 1995 and the pro forma consolidated condensed
statement of operations for the three months then ended. The pro forma
consolidated condensed financial statements are derived from the historical
financial statements of Peter Kiewit Sons', Inc. and Subsidiaries, which were
reviewed by us, incorporated herein by reference. Such pro forma adjustments are
based upon management's assumptions described in the accompanying notes. Our
review was made in accordance with standards established by the American
Institute of Certified Public Accountants.
The objective of this pro forma financial information is to show what the
significant effects on the historical information might have been had the
transactions occurred at an earlier date. However, the pro forma consolidated
condensed financial statements are not necessarily indicative of the results of
operations or related effects on financial position that would have been
attained had the above-mentioned transactions actually occurred earlier.
In our opinion, management's assumptions provide a reasonable basis for
presenting the significant effects directly attributable to the above-mentioned
transactions described in the accompanying notes, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
column reflects the proper application of those adjustments to the historical
financial statement amounts in the pro forma consolidated condensed statement of
operations for the year ended December 31, 1994.
A review is substantially less in scope than an audit, the objective of
which is the expression of an opinion on management's assumptions, the pro forma
adjustments and the application of those adjustments to historical financial
information. Accordingly, we do not express such an opinion on the pro forma
adjustments or the application of such adjustments to the pro forma consolidated
condensed balance sheet as of March 31, 1995, and the pro forma consolidated
condensed statement of operations for the three months then ended. Based on our
review, however, nothing came to our attention that caused us to believe that
management's assumptions do not provide a reasonable basis for presenting the
significant effects directly attributable to the above-mentioned transactions
described in the accompanying notes, that the related pro forma adjustments do
not give appropriate effect to those assumptions, or that the pro forma column
does not reflect the proper application of those adjustments to the historical
financial statement amounts in the pro forma consolidated condensed balance
sheet as of March 31, 1995, and the pro forma consolidated condensed statement
of operations for the three months then ended.
COOPERS & LYBRAND L.L.P.
Omaha, Nebraska
June 9, 1995
F-3
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
(UNAUDITED)
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
------------------------------------------------ ------------------------------------------------
OTHER OTHER
ADJUSTMENTS ADJUSTMENTS
HISTORICAL MFS (NOTE 2) PKS PRO FORMA HISTORICAL MFS (NOTE 2) PKS PRO FORMA
----------- ----- ----------- -------------- ----------- ----- ----------- --------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue...................... $ 2,991 $ 287 $-- $ 2,704 $ 681 $ 118 $-- $ 563
Cost of Revenue.............. (2,650) (342) -- (2,308) (636) (149) -- (487)
----------- ----- --- -------------- ----------- ----- --- --------------
341 (55) -- 396 45 (31) -- 76
General and Administrative
Expenses.................... (311) (81) -- (230) (81) (26) -- (55)
----------- ----- --- -------------- ----------- ----- --- --------------
Operating Earnings (Loss).... 30 (136) -- 166 (36) (57) -- 21
Other Income (Expense):
Gain on Subsidiary's Stock
Transactions, net......... 54 -- (54)(a) -- 3 -- (3)(a) --
Investment Income, net..... 67 24 -- 43 18 3 -- 15
Interest Expense, net...... (79) (41) -- (b) (38) (27) (9) -- (b) (18)
Other, net................. 15 -- -- 15 7 (1) -- 8
----------- ----- --- -------------- ----------- ----- --- --------------
57 (17) (54) 20 1 (7) (3) 5
----------- ----- --- -------------- ----------- ----- --- --------------
Earnings (Loss) before Income
Taxes and Minority Interest
in Net Losses (Gains) of
Subsidiaries................ 87 (153) (54) 186 (35) (64) (3) 26
Provision for Income Taxes... (27) 2 19(c) (10) (10) -- 1(c) (9)
Minority Interest in Net
Losses (Gains) of
Subsidiaries................ 50 -- (49)(d) 1 19 -- (22)(d) (3)
----------- ----- --- -------------- ----------- ----- --- --------------
Net Earnings (Loss).......... $ 110 $(151) $(84) $ 177 $ (26) $ (64) $(24) $ 14
----------- ----- --- -------------- ----------- ----- --- --------------
----------- ----- --- -------------- ----------- ----- --- --------------
Earnings (Loss) Attributable
to
Class B & C Stock.......... $ 77 $ 75 $ (2) $ (3)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D Stock.............. $ 33 $ 102 $ (24) $ 17
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Earnings (Loss) Per Common
and Common Equivalent Share:
Class B & C................ $ 4.92 $ 5.88 $ (.16) $ (.26)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D.................... $ 1.63 $ 4.73 $ (1.14) $ .75
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Weighted Average Shares
Outstanding:
Class B & C................ 15,697,724 12,757,653(e) 13,909,422 10,969,351(e)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D.................... 20,438,806 21,636,604(e) 21,265,769 22,606,978(e)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-4
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
(UNAUDITED)
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
------------------------------------------------ ------------------------------------------------
OTHER OTHER
ADJUSTMENTS ADJUSTMENTS
HISTORICAL MFS (NOTE 2) PKS PRO FORMA HISTORICAL MFS (NOTE 2) PKS PRO FORMA
----------- ----- ----------- -------------- ----------- ----- ----------- --------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue....................... $ 2,991 $ 287 $-- $ 2,704 $ 681 $ 118 $-- $ 563
Cost of Revenue............... (2,650) (342) -- (2,308) (636) (149) -- (487)
----------- ----- --- -------------- ----------- ----- --- --------------
341 (55) -- 396 45 (31) -- 76
General and Administrative
Expenses..................... (311) (81) -- (230) (81) (26) -- (55)
----------- ----- --- -------------- ----------- ----- --- --------------
Operating Earnings (Loss)..... 30 (136) -- 166 (36) (57) -- 21
Other Income (Expenses):
Gain on Subsidiary's Stock
Transactions, net.......... 54 -- (54)(a) -- 3 -- (3)(a) --
Investment Income, net...... 67 24 -- 43 18 3 -- 15
Interest Expense, net....... (79) (41) -- (b) (38) (27) (9) -- (b) (18)
Other, net.................. 15 -- -- 15 7 (1) -- 8
----------- ----- --- -------------- ----------- ----- --- --------------
57 (17) (54) 20 1 (7) (3) 5
----------- ----- --- -------------- ----------- ----- --- --------------
Earnings (Loss) before Income
Taxes and Minority Interest
in Net Losses (Gains) of
Subsidiaries................. 87 (153) (54) 186 (35) (64) (3) 26
Provision for Income Taxes.... (27) 2 19(c) (10) (10) -- 1(c) (9)
Minority Interest in Net
Losses (Gains) of
Subsidiaries................. 50 -- (49)(d) 1 19 -- (22)(d) (3)
----------- ----- --- -------------- ----------- ----- --- --------------
Net Earnings (Loss)........... $ 110 $(151) $(84) $ 177 $ (26) $ (64) $(24) $ 14
----------- ----- --- -------------- ----------- ----- --- --------------
----------- ----- --- -------------- ----------- ----- --- --------------
Earnings (Loss) Attributable
to:
Class B & C Stock........... $ 77 $ 74 $ (2) $ (3)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D..................... $ 33 $ 103 $ (24) $ 17
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Earnings (Loss) Per Common and
Common Equivalent Share:
Class B & C................. $ 4.92 $ 6.84 $ (.16) $ (.37)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D..................... $ 1.63 $ 4.63 $ (1.14) $ .74
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Weighted Average Shares
Outstanding:
Class B & C................. 15,697,724 10,757,653(e) 13,909,422 8,969,351(e)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
Class D..................... 20,438,806 22,389,129(e) 21,265,769 23,455,111(e)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-5
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
ASSETS
<TABLE>
<CAPTION>
ADJUSTMENTS PKS
HISTORICAL MFS (NOTE 3) PRO FORMA
----------- --------- ----------- -----------
<S> <C> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents....................................... $ 392 $ 44 $ -- $ 348
Marketable securities........................................... 706 205 -- 501
Receivables, net................................................ 372 74 -- 298
Costs and earnings in excess of billings on uncompleted
contracts...................................................... 143 25 -- 118
Investment in construction joint ventures....................... 50 -- -- 50
Deferred income taxes........................................... 68 -- -- 68
Other........................................................... 102 44 -- 58
----------- --------- ----------- -----------
Total Current Assets........................................ 1,833 392 -- 1,441
Property, Plant and Equipment, net................................ 1,350 765 -- 585
Investments....................................................... 425 -- -- 425
Intangible Assets, net............................................ 755 395 -- 360
Other Assets...................................................... 86 3 -- 83
----------- --------- ----------- -----------
$ 4,449 $ 1,555 $ -- $ 2,894
----------- --------- ----------- -----------
----------- --------- ----------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable................................................ $ 338 $ 131 $ -- $ 207
Current portion of long-term debt:
Telecommunications............................................ 28 19 -- 9
Other......................................................... 5 -- (1)(a) 4
Accrued costs and billings in excess of revenue on uncompleted
contracts...................................................... 150 29 -- 121
Accrued insurance costs......................................... 71 -- -- 71
Other........................................................... 192 62 12(b) 142
----------- --------- ----------- -----------
Total Current Liabilities................................... 784 241 11 554
Long-term Debt, less current portion:
Telecommunications............................................ 845 561 -- 284
Other......................................................... 84 -- (2)(a) 82
Deferred Income Taxes............................................. 290 -- (93)(c) 197
Retirement Benefits............................................... 48 -- -- 48
Accrued Reclamation Costs......................................... 105 -- -- 105
Other Liabilities................................................. 137 24 -- 113
Minority Interest................................................. 436 10 (240)(d) 186
Stockholders' Equity:
Preferred stock................................................. -- -- -- --
Common stock....................................................
Class B shares outstanding: historical -- 884,400, pro forma
-- 0......................................................... -- -- -- --
Class C shares outstanding: historical -- 13,006,455, pro
forma -- 10,950,784.......................................... 1 -- -- 1
Class D shares outstanding: historical -- 21,251,591, pro
forma -- 22,592,800.......................................... 1 -- -- 1
Additional paid-in capital...................................... 180 -- 3(a) 183
Foreign currency adjustment..................................... (5) 2 -- (7)
Net unrealized holding gains (losses)........................... 4 (2) -- 6
Retained earnings............................................... 1,539 719 (12)(b)
93(c)
240(d) 1,141
----------- --------- ----------- -----------
Total Stockholders' Equity.................................. 1,720 719 324 1,325
----------- --------- ----------- -----------
$ 4,449 $ 1,555 $ -- $ 2,894
----------- --------- ----------- -----------
----------- --------- ----------- -----------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-6
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
ASSETS
<TABLE>
<CAPTION>
ADJUSTMENTS PKS
HISTORICAL MFS (NOTE 3) PRO FORMA
---------- ------ ----------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Current Assets
Cash and cash equivalents........................................... $ 392 $ 44 $-- $ 348
Marketable securities............................................... 706 205 -- 501
Receivables, net.................................................... 372 74 -- 298
Cost and earnings in excess of billings and uncompleted contracts... 143 25 -- 118
Investment in construction joint ventures........................... 50 -- -- 50
Deferred income taxes............................................... 68 -- -- 68
Other............................................................... 102 44 -- 58
---------- ------ ----------- ---------
Total Current Assets.................................................. 1,833 392 -- 1,441
Property, Plant and Equipment, net.................................... 1,350 765 -- 585
Investments........................................................... 425 -- -- 425
Intangible Assets, net................................................ 755 395 -- 360
Other Assets.......................................................... 86 3 -- 83
---------- ------ ----------- ---------
$4,449 $1,555 $-- $2,894
---------- ------ ----------- ---------
---------- ------ ----------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable.................................................... $ 338 $ 131 $-- $ 207
Current portion of long-term debt:
Telecommunications................................................ 28 19 -- 9
Other............................................................. 5 -- (1)(a) 4
Accrued costs and billings in excess of revenue on uncompleted
contracts.......................................................... 150 29 -- 121
Accrued insurance costs............................................. 71 -- -- 71
Other............................................................... 192 62 12(b) 142
---------- ------ ----------- ---------
Total Current Liabilities............................................. 784 241 11 554
Long-term Debt, less current portion:
Telecommunications.................................................. 845 561 -- 284
Other............................................................... 84 -- (2)(a) 82
Deferred Income Taxes................................................. 290 -- (93)(c) 197
Retirement Benefits................................................... 48 -- -- 48
Accrued Reclamation Costs............................................. 105 -- -- 105
Other Liabilities..................................................... 137 24 -- 113
Minority Interest..................................................... 436 10 (240)(d) 186
Stockholders' Equity:
Preferred stock..................................................... -- -- -- --
Common Stock
Class B shares outstanding: historical -- 884,400, pro forma --
0................................................................ -- -- -- --
Class C shares outstanding: historical -- 13,006,455, pro forma --
8,950,784........................................................ 1 -- -- 1
Class D shares outstanding: historical -- 21,251,597, pro forma --
23,440,933....................................................... 1 -- -- 1
Additional paid-in capital.......................................... 180 -- 3(a) 183
Foreign currency adjustment......................................... (5) 2 -- (7)
Net unrealized holding gains (losses)............................... 4 (2) -- 6
Retained earnings................................................... 1,539 719 (12)(b)
93(c)
240(d) 1,141
---------- ------ ----------- ---------
Total Stockholders' Equity............................................ 1,720 719 324 1,325
---------- ------ ----------- ---------
$4,449 $1,555 $-- $2,894
---------- ------ ----------- ---------
---------- ------ ----------- ---------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-7
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. BASIS OF REPORTING
The accompanying pro forma consolidated condensed financial statements of
PKS are presented based upon the historical consolidated financial statements
and the notes thereto of PKS, as adjusted to remove the earnings statement and
balance sheet accounts of MFS and to give effect to certain other elements of
the MFS Recapitalization, the Exchange Offer and the Spin-off, (together, the
"Transactions"). The pro forma information assumes, in two separate scenarios,
that 3 million (Scenario 1) and 5 million (Scenario 2), shares of the
Exchangeable Stock and all the Exchangeable Debentures are exchanged in the
Exchange Offer. Such pro forma financial statements should be read in
conjunction with the separate historical consolidated financial statements and
the notes thereto of PKS, incorporated herein by reference. Such pro forma
financial statements are not necessarily indicative of the future results of
operations or financial position.
Completion of the Transactions has been assumed to be as of March 31, 1995
in the pro forma consolidated condensed balance sheet and as of December 26,
1993 and January 1, 1995, in the pro forma consolidated condensed statements of
operations for the year ended December 31, 1994 and the three months ended March
31, 1995, respectively.
The significant accounting policies followed by PKS, described in the notes
to its historical consolidated financial statements incorporated herein by
reference, have been used in preparing the accompanying pro forma consolidated
condensed financial statements.
2. STATEMENTS OF OPERATIONS PRO FORMA ADJUSTMENTS
As described in Note 1, the historical consolidated statements of operations
for PKS have been adjusted to remove the income and expenses of MFS and to give
effect to certain other elements of the Transactions. The other adjustments made
in preparation of the PKS Pro Forma Statements of Operations are described
below:
(a) Adjustment made to reverse the gain recognized from MFS stock
transactions that would not have been recorded if the Transactions were
completed at the beginning of the periods.
(b) No adjustment has been made for the decrease in interest expense due to
the assumed exchange of the Exchangeable Debentures as the adjustment is
less than $1 million.
(c) Adjustment made to reflect the tax effect of the above adjustments.
(d) Adjustment made to reverse the minority interest in the loss of MFS that
would not have been recorded if the Transactions were completed at the
beginning of the periods.
(e) Scenario 1 assumes 3,000,000 shares of Exchangeable Stock are exchanged
for Class D Stock and Scenario 2 assumes that 5,000,000 shares of
Exchangeable Stock are exchanged for Class D Stock at the prior year end
conversion ratio. The pro forma weighted average shares also include an
additional 59,929 Class C shares and 69,010 Class D shares attributable
to the exchange of the Exchangeable Debentures.
3. BALANCE SHEET PRO FORMA ADJUSTMENTS
As described in Note 1, the historical consolidated balance sheet of PKS has
been adjusted to remove the balance sheet of MFS and to give effect to certain
other elements of the Transactions. The paid-in capital and retained earnings of
MFS have been combined and reflected as retained earnings on the balance sheet
of MFS for purposes of this pro forma presentation. The other adjustments made
in preparation of the PKS Pro Forma Consolidated Condensed Balance Sheet are
described below:
(a) Adjustment made to reflect the exchange of the Exchangeable Debentures
for Class C and Class D Stock.
F-8
<PAGE>
PETER KIEWIT SONS', INC. AND SUBSIDIARIES
NOTES TO PRO FORMA CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
3. BALANCE SHEET PRO FORMA ADJUSTMENTS (CONTINUED)
(b) Adjustment made to record the accrual of certain estimated corporate
United States Federal income taxes attributable to the corporate
built-in gain on the stock of MFS being distributed to certain
non-United States Class D stockholders.
(c) Adjustment made to reverse certain deferred tax liabilities recognized
on gains from MFS stock transactions that are no longer payable.
(d) Adjustment made to record the reversal of the minority interest in MFS.
4. EARNINGS PER SHARE
Primary earnings per share of common stock have been computed using the
weighted average number of shares outstanding during each period. Fully diluted
earnings per share have not been presented because they are not materially
different from primary earnings per share.
5. OTHER MATTERS
In 1974, a subsidiary of the Company ("Kiewit"), entered into a lease with
Whitney Benefits, Inc., a Wyoming charitable corporation ("Whitney"). Whitney is
the owner, and Kiewit is the lessee, of a coal deposit underlying a 1,300 acre
tract in Sheridan County, Wyoming. The coal was rendered unmineable by the
Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), which prohibited
surface mining of coal in certain alluvial valley floors significant to farming.
In 1983, Kiewit and Whitney filed an action, titled WHITNEY BENEFITS, INC. AND
PETER KIEWIT SONS' CO. V. THE UNITED STATES, in the U.S. Court of Federal Claims
("Claims Court"), alleging that the enactment of SMCRA constituted a taking of
their coal without just compensation. In 1989, the Claims Court ruled that a
taking had occurred and awarded plaintiffs the 1977 fair market value of the
property ($60 million) plus interest. In 1991, the U.S. Court of Appeals for the
Federal Circuit affirmed the decision of the Claims Court and the U.S. Supreme
Court denied certiorari. The government filed two post-trial motions in the
Claims Court during 1992. The government requested a new trial to redetermine
the 1977 value of the property. The government also filed a motion to reopen and
set aside the 1989 judgment as void and to dismiss plaintiffs' complaint for
lack of jurisdiction. In May 1994, the Claims Court entered an order denying
both motions. In February 1994, the Claims Court issued an opinion which
provided that the $60 million judgment would bear interest compounded annually
from 1977 until payment. The government appealed the February 1994 and May 1994
orders. A hearing on the appeals was held in February 1995.
On May 5, 1995, the government and the plaintiffs entered into a settlement
agreement. In settlement of all claims, the government agreed to pay plaintiffs
$200 million and plaintiffs agreed to deed the coal underlying the real property
to the government. Kiewit and Whitney agreed in 1992 that Kiewit would receive
67.5 percent of any award and Whitney would receive the remainder. Peter Kiewit
Sons' Co., a subsidiary of Kiewit Diversified Group Inc., received approximately
$135 million on June 2, 1995.
F-9
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders
Peter Kiewit Sons, Inc.
We have examined the pro forma adjustments reflecting the transactions
described in the accompanying notes and the application of those adjustments to
the historical amounts in the accompanying pro forma condensed statement of
operations of Kiewit Construction & Mining Group, a business group of Peter
Kiewit Sons', Inc., for the year ended December 31, 1994. The pro forma
condensed statement of operations is derived from the historical financial
statements of Kiewit Construction & Mining Group, which were audited by us,
incorporated herein by reference. Such pro forma adjustments are based upon
management's assumptions described in the accompanying notes. Our examination
was made in accordance with standards established by the American Institute of
Certified Public Accountants and, accordingly, included such procedures as we
considered necessary in the circumstances.
In addition, we have reviewed the related pro forma adjustments and the
application of those adjustments to the historical amounts in the accompanying
pro forma condensed balance sheet of Kiewit Construction & Mining Group as of
March 31, 1995 and the pro forma condensed statement of operations for the three
months then ended. The pro forma condensed financial statements are derived from
the historical financial statements of Kiewit Construction & Mining Group, which
were reviewed by us, incorporated herein by reference. Such pro forma
adjustments are based upon management's assumptions described in the
accompanying notes. Our review was made in accordance with standards established
by the American Institute of Certified Public Accountants.
The objective of this pro forma financial information is to show what the
significant effects on the historical information might have been had the
transactions occurred at an earlier date. However, the pro forma condensed
financial statements are not necessarily indicative of the results of operations
or related effects on financial position that would have been attained had the
above-mentioned transactions actually occurred earlier.
In our opinion, management's assumptions provide a reasonable basis for
presenting the significant effects directly attributable to the above-mentioned
transactions described in the accompanying notes, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
column reflects the proper application of those adjustments to the historical
financial statement amounts in the pro forma condensed statement of operations
for the year ended December 31, 1994.
A review is substantially less in scope than an audit, the objective of
which is the expression of an opinion on management's assumptions, the pro forma
adjustments and the application of those adjustments to historical financial
information. Accordingly, we do not express such an opinion on the pro forma
adjustments or the application of such adjustments to the pro forma condensed
balance sheet as of March 31, 1995, and the pro forma condensed statement of
operations for the three months then ended. Based on our review, however,
nothing came to our attention that caused us to believe that management's
assumptions do not provide a reasonable basis for presenting the significant
effects directly attributable to the above-mentioned transactions described in
the accompanying notes, that the related pro forma adjustments do not give
appropriate effect to those assumptions, or that the pro forma column does not
reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma condensed balance sheet as of March 31, 1995,
and the pro forma condensed statement of operations for the three months then
ended.
COOPERS & LYBRAND L.L.P.
Omaha, Nebraska
June 9, 1995
F-10
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
PRO FORMA CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
--------------------------------------- --------------------------------------
ADJUSTMENTS ADJUSTMENTS
HISTORICAL (NOTE 2) PRO FORMA HISTORICAL (NOTE 2) PRO FORMA
---------- ----------- ------------- ---------- ----------- ------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
Revenue................................ $ 2,175 $-- $ 2,175 $ 426 $-- $ 426
Cost of Revenue........................ (1,995) -- (1,995) (409) -- (409)
---------- ----------- ------------- ---------- ----------- ------------
180 -- 180 17 -- 17
General and Administrative Expenses.... (121) -- (121) (32) -- (32)
---------- ----------- ------------- ---------- ----------- ------------
Operating Earnings (Loss).............. 59 -- 59 (15) -- (15)
Other Income (Expense):
Investment Income, net............... 13 (3)(a) 10 3 (1)(a) 2
Interest Expense..................... (2) --(b) (2) (1) --(b) (1)
Other, net........................... 46 -- 46 11 -- 11
---------- ----------- ------------- ---------- ----------- ------------
57 (3) 54 13 (1) 12
---------- ----------- ------------- ---------- ----------- ------------
Earnings (Loss) before Income Taxes.... 116 (3) 113 (2) (1) (3)
(Provision) Benefit for Income Taxes... (39) 1(c) (38) -- --(c) --
---------- ----------- ------------- ---------- ----------- ------------
Net Earnings (Loss).................... $ 77 $ (2) $ 75 $ (2) $ (1) $ (3)
---------- ----------- ------------- ---------- ----------- ------------
---------- ----------- ------------- ---------- ----------- ------------
Net Earnings (Loss) Per Common and
Common Equivalent Share............... $ 4.92 $ 5.88 $ (.16) $ (.26)
---------- ------------- ---------- ------------
---------- ------------- ---------- ------------
Weighted Average Shares Outstanding.... 15,697,724 12,757,653(d) 13,909,422 10,969,351(d)
---------- ------------- ---------- ------------
---------- ------------- ---------- ------------
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-11
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
PRO FORMA CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
(UNAUDITED)
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
--------------------------------------- --------------------------------------
ADJUSTMENTS ADJUSTMENTS
HISTORICAL (NOTE 2) PRO FORMA HISTORICAL (NOTE 2) PRO FORMA
---------- ----------- ------------- ---------- ----------- ------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C>
Revenue...................................... $ 2,175 $-- $ 2,175 $ 426 $-- $ 426
Cost of Revenue.............................. (1,995) -- (1,995) (409) -- (409)
---------- ----------- ------------- ---------- ----------- ------------
180 -- 180 17 -- 17
General and Administrative Expenses.......... (121) -- (121) (32) -- (32)
---------- ----------- ------------- ---------- ----------- ------------
Operating Earnings (Loss).................... 59 -- 59 (15) -- (15)
Other Income (Expense):
Investment Income, net..................... 13 (5)(a) 8 3 (1)(a) 2
Interest Expense........................... (2) --(b) (2) (1) --(b) (1)
Other, net................................. 46 -- 46 11 -- 11
---------- ----------- ------------- ---------- ----------- ------------
57 (5) 52 13 (1) 12
---------- ----------- ------------- ---------- ----------- ------------
Earnings (Loss) before Income Taxes.......... 116 (5) 111 (2) (1) (3)
(Provision) Benefit for Income Taxes......... (39) 2(c) (37) -- --(c) --
---------- ----------- ------------- ---------- ----------- ------------
Net Earnings (Loss).......................... $ 77 $ (3) $ 74 $ (2) $ (1) $ (3)
---------- ----------- ------------- ---------- ----------- ------------
---------- ----------- ------------- ---------- ----------- ------------
Net Earnings (Loss) Per Common and Common
Equivalent Share............................ $ 4.92 $ 6.84 $ (.16) $ (.37)
---------- ------------- ---------- ------------
---------- ------------- ---------- ------------
Weighted Average Shares Outstanding.......... 15,697,724 10,757,653(d) 13,909,422 8,969,351(d)
---------- ------------- ---------- ------------
---------- ------------- ---------- ------------
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-12
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
PRO FORMA CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
ADJUSTMENTS
HISTORICAL (NOTE 3) PRO FORMA
---------- ----------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................................ $ 84 $(77)(a) $ 7
Marketable securities.................................................... 98 -- 98
Receivables, net......................................................... 235 -- 235
Costs and earnings in excess of billings on uncompleted contracts........ 118 -- 118
Investment in construction joint ventures................................ 50 -- 50
Deferred income taxes.................................................... 54 -- 54
Other.................................................................... 18 -- 18
----- ----- ---------
Total Current Assets................................................... 657 (77) 580
Property, Plant and Equipment, net......................................... 150 -- 150
Deferred Income Taxes...................................................... 4 -- 4
Other Assets............................................................... 85 -- 85
----- ----- ---------
$896 $(77) $819
----- ----- ---------
----- ----- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable......................................................... $166 -$- $166
Current portion of long-term debt........................................ 2 -- 2
Accrued construction costs and billings in excess of revenue on
uncompleted contracts................................................... 113 -- 113
Accrued insurance costs.................................................. 71 -- 71
Other.................................................................... 43 -- 43
----- ----- ---------
Total Current Liabilities.............................................. 395 -- 395
Long-term Debt, less current portion....................................... 7 (1)(b) 6
Other Liabilities.......................................................... 46 -- 46
Stockholders Equity:
Common equity............................................................ 454 (77)(a)
1(b) 378
Foreign currency adjustment.............................................. (6) -- (6)
Unrealized holding gain (loss)........................................... -- -- --
----- ----- ---------
Total Stockholders' Equity............................................. 448 (76) 372
----- ----- ---------
$896 $(77) $819
----- ----- ---------
----- ----- ---------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-13
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
PRO FORMA CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF
EXCHANGEABLE STOCK EXCHANGED FOR CLASS D STOCK)
<TABLE>
<CAPTION>
ADJUSTMENTS
HISTORICAL (NOTE 3) PRO FORMA
---------- ----------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents................................................ $ 84 $ (84)(a) $--
Marketable securities.................................................... 98 (44)(a) 54
Receivables, net......................................................... 235 -- 235
Costs and earnings in excess of billings on uncompleted contracts........ 118 -- 118
Investment in construction joint ventures................................ 50 -- 50
Deferred income taxes.................................................... 54 -- 54
Other.................................................................... 18 -- 18
----- ----------- ---------
Total Current Assets................................................... 657 (128) 529
Property, Plant and Equipment, net......................................... 150 -- 150
Deferred Income Taxes...................................................... 4 -- 4
Other Assets............................................................... 85 -- 85
----- ----------- ---------
$896 $(128) $768
----- ----------- ---------
----- ----------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable......................................................... $166 $-- $166
Current portion of long-term debt........................................ 2 -- 2
Accrued construction costs and billings in excess of revenue on
uncompleted contracts................................................... 113 -- 113
Accrued insurance costs.................................................. 71 -- 71
Other.................................................................... 43 -- 43
----- ----------- ---------
Total Current Liabilities.............................................. 395 -- 395
Long-term Debt, less current portion....................................... 7 (1)(b) 6
Other Liabilities.......................................................... 46 -- 46
Stockholders' Equity:
Common equity............................................................ 454 (128)(a)
1(b) 327
Foreign currency adjustment.............................................. (6) -- (6)
Unrealized holding gain (loss)........................................... -- -- --
----- ----------- ---------
Total Stockholders' Equity............................................. 448 (127) 321
----- ----------- ---------
$896 $(128) $768
----- ----------- ---------
----- ----------- ---------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-14
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS
1. BASIS OF REPORTING
The accompanying pro forma condensed financial statements of the Kiewit
Construction & Mining Group ("the Group") are presented based upon the
historical financial statements and the notes thereto of the Group, as adjusted
to give effect to certain elements of the MFS Recapitalization, the Exchange
Offer and the Spin-off, (together the "Transactions"). The pro forma information
assumes, in two separate scenarios, that 3 million (Scenario 1) and 5 million
(Scenario 2), shares of the Exchangeable Stock and all the Exchangeable
Debentures are exchanged in the Exchange Offer. Such pro forma financial
statements should be read in conjunction with the separate historical financial
statements and the notes thereto of the Group, incorporated herein by reference.
Such pro forma financial statements are not necessarily indicative of the future
results of operations or financial position.
Completion of the Transactions has been assumed to be as of March 31, 1995
in the pro forma condensed balance sheet and as of December 26, 1993 and January
1, 1995, in the pro forma condensed statements of operations for the year ended
December 31, 1994 and the three months ended March 31, 1995, respectively.
The significant accounting policies followed by the Group, described in the
notes to its historical financial statements incorporated herein by reference,
have been used in preparing the accompanying pro forma condensed financial
statements.
Although the pro forma financial statements of PKS' Construction & Mining
Group and Diversified Group separately report the assets, liabilities and
stockholders' equity of PKS attributed to each such group, legal title to such
assets and responsibility for such liabilities will not be affected by such
attribution. Holders of Class B Stock, Class C Stock and Class D Stock are
stockholders of PKS. Accordingly, the PKS pro forma consolidated financial
statements and related notes should be read in conjunction with these pro forma
financial statements.
2. STATEMENTS OF OPERATIONS PRO FORMA ADJUSTMENTS
As described in Note 1, the historical statements of operations for the
Group have been adjusted to give effect to certain elements of the Transactions.
The other adjustments made in preparation of the Group's Pro Forma Statements of
Operations are described below:
(a) Adjustment made to reflect the reduction in interest income from the use
of cash paid to Kiewit Diversified Group upon exchange of 3 million
shares of Exchangeable Stock to Class D Stock in Scenario 1 and 5
million shares of Exchangeable Stock to Class D Stock in Scenario 2. The
interest rate used to calculate the reduction in interest income
approximates the average rate earned by the Group during the periods.
(b) No adjustment has been made for the decrease in interest expense due to
the assumed exchange of the Exchangeable Debentures as the adjustment is
less than $1 million.
(c) Adjustment made to reflect tax effect of the above adjustments.
(d) Scenario 1 assumes 3,000,000 shares of Exchangeable Stock are exchanged
for Class D Stock and Scenario 2 assumes 5,000,000 shares of
Exchangeable Stock are exchanged for Class D Stock at the prior year end
conversion ratio. The pro forma weighted average shares also include an
additional 59,929 Class C shares attributable to the exchange of the
Exchangeable Debentures.
F-15
<PAGE>
KIEWIT CONSTRUCTION & MINING GROUP
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS (CONTINUED)
3. BALANCE SHEET PRO FORMA ADJUSTMENTS
As described in Note 1, the historical balance sheet of the Group has been
adjusted to give effect to certain elements of the Transactions. The other
adjustments made in preparation of the Group's Pro Forma Condensed Balance Sheet
are described below:
(a) Adjustment made to reflect the decrease in cash, cash equivalents and
marketable securities as the result of the exchange of 3 million shares
(Scenario 1) and 5 million shares (Scenario 2) of Exchangeable Stock at
the prior year end stock prices and conversion ratios.
(b) Adjustment made to reflect the exchange of the Exchangeable Debentures
for Class C Stock.
4. EARNINGS PER SHARE
Primary earnings per share of common stock have been computed using the
weighted average number of shares outstanding during each period. Fully diluted
earnings per share have not been presented because they are not materially
different from primary earnings per share.
F-16
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
The Board of Directors and Stockholders
Peter Kiewit Sons', Inc.
We have examined the pro forma adjustments reflecting the transactions
described in the accompanying notes and the application of those adjustments to
the historical amounts in the accompanying pro forma condensed statement of
operations of Kiewit Diversified Group, a business group of Peter Kiewit Sons',
Inc., for the year ended December 31, 1994. The pro forma condensed statement of
operations is derived from the historical financial statements of Kiewit
Diversified Group, which were audited by us, incorporated herein by reference.
Such pro forma adjustments are based upon management's assumptions described in
the accompanying notes. Our examination was made in accordance with standards
established by the American Institute of Certified Public Accountants and,
accordingly, included such procedures as we considered necessary in the
circumstances.
In addition, we have reviewed the related pro forma adjustments and the
application of those adjustments to the historical amounts in the accompanying
pro forma condensed balance sheet of Kiewit Diversified Group as of March 31,
1995 and the pro forma condensed statement of operations for the three months
then ended. The pro forma condensed financial statements are derived from the
historical financial statements of Kiewit Diversified Group, which were reviewed
by us, incorporated herein by reference. Such pro forma adjustments are based
upon management's assumptions described in the accompanying notes. Our review
was made in accordance with standards established by the American Institute of
Certified Public Accountants.
The objective of this pro forma financial information is to show what the
significant effects on the historical information might have been had the
transactions occurred at an earlier date. However, the pro forma condensed
financial statements are not necessarily indicative of the results of operations
or related effects on financial position that would have been attained had the
above-mentioned transactions actually occurred earlier.
In our opinion, management's assumptions provide a reasonable basis for
presenting the significant effects directly attributable to the above-mentioned
transactions described in the accompanying notes, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
column reflects the proper application of those adjustments to the historical
financial statement amounts in the pro forma condensed statement of operations
for the year ended December 31, 1994.
A review is substantially less in scope than an audit, the objective of
which is the expression of an opinion on management's assumptions, the pro forma
adjustments and the application of those adjustments to historical financial
information. Accordingly, we do not express such an opinion on the pro forma
adjustments or the application of such adjustments to the pro forma condensed
balance sheet as of March 31, 1995, and the pro forma condensed statement of
operations for the three months then ended. Based on our review, however,
nothing came to our attention that caused us to believe that management's
assumptions do not provide a reasonable basis for presenting the significant
effects directly attributable to the above-mentioned transactions described in
the accompanying notes, that the related pro forma adjustments do not give
appropriate effect to those assumptions, or that the pro forma column does not
reflect the proper application of those adjustments to the historical financial
statement amounts in the pro forma condensed balance sheet as of March 31, 1995,
and the pro forma condensed statement of operations for the three months then
ended.
COOPERS & LYBRAND L.L.P.
Omaha, Nebraska
June 9, 1995
F-17
<PAGE>
KIEWIT DIVERSIFIED GROUP
PRO FORMA CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
------------------------------------------------ ------------------------------------------------
OTHER OTHER
ADJUSTMENTS ADJUSTMENTS
HISTORICAL MFS (NOTE 2) PRO FORMA HISTORICAL MFS (NOTE 2) PRO FORMA
----------- ----- ----------- -------------- ----------- ----- ----------- --------------
(UNAUDITED)
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenues..................... $ 821 $ 287 $-- $ 534 $ 257 $ 118 $-- $ 139
Cost of Revenue.............. (660) (342) -- (318) (229) (149) -- (80)
----------- ----- --- -------------- ----------- ----- --- --------------
161 (55) -- 216 28 (31) -- 59
General and Administration
Expenses.................... (219) (81) -- (138) (57) (26) -- (31)
----------- ----- --- -------------- ----------- ----- --- --------------
Operating Earnings (Loss).... (58) (136) -- 78 (29) (57) -- 28
Other Income (Expenses):
Gain on Subsidiary's Stock
Transactions, net.......... 54 -- (54)(a) -- 3 -- (3)(a) --
Investment Income, net..... 54 24 3(b) 33 15 3 1(b) 13
Interest Expense, net...... (77) (41) --(c) (36) (26) (9) --(c) (17)
Other, net................. (2) -- -- (2) 4 (1) -- 5
----------- ----- --- -------------- ----------- ----- --- --------------
29 (17) (51) (5) (4) (7) (2) 1
----------- ----- --- -------------- ----------- ----- --- --------------
Earnings (Loss) before Income
Taxes and Minority Interest
in Net Losses (Gains) of
Subsidiaries................ (29) (153) (51) 73 (33) (64) (2) 29
Benefit (Provision) for
Income Taxes................ 12 2 18(d) 28 (10) -- 1(d) (9)
Minority Interest in Net
Losses (Gains) of
Subsidiaries................ 50 -- (49)(e) 1 19 -- (22)(e) (3)
----------- ----- --- -------------- ----------- ----- --- --------------
Net Earnings (Loss).......... $ 33 $(151) $(82) $ 102 $ (24) $ (64) $(23) $ 17
----------- ----- --- -------------- ----------- ----- --- --------------
----------- ----- --- -------------- ----------- ----- --- --------------
Net Earnings (Loss) Per
Common and Common Equivalent
Share....................... $1.63 $4.73 $(1.14) $0.75
Weighted Average Shares
Outstanding................. 20,438,805 21,636,604(f) 21,265,769 22,606,978(f)
----------- -------------- ----------- --------------
----------- -------------- ----------- --------------
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-18
<PAGE>
KIEWIT DIVERSIFIED GROUP
PRO FORMA CONDENSED STATEMENTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
AND THREE MONTHS ENDED MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF
EXCHANGEABLE STOCK EXCHANGED FOR CLASS D STOCK)
<TABLE>
<CAPTION>
(UNAUDITED)
YEAR ENDED DECEMBER 31, 1994 THREE MONTHS ENDED MARCH 31, 1995
----------------------------------------------- -----------------------------------------------
OTHER OTHER
ADJUSTMENTS ADJUSTMENTS
HISTORICAL MFS (NOTE 2) PRO FORMA HISTORICAL MFS (NOTE 2) PRO FORMA
---------- ----- ----------- ------------- ---------- ----- ----------- -------------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue........................ $ 821 $ 287 $-- $ 534 $ 257 $ 118 $-- $ 139
Cost of Revenue................ (660) (342) -- (318) (229) (149) -- (80)
---------- ----- --- ------ ---------- ----- ----------- -----
161 (55) -- 216 28 (31) -- 59
General and Administrative
Expenses...................... (219) (81) -- (138) (57) (26) -- (31)
---------- ----- --- ------ ---------- ----- ----------- -----
Operating Earnings
(Loss).................... (58) (136) -- 78 (29) (57) -- 28
Other Income (Expense):
Gain on Subsidiary's Stock
Transactions, net........... 54 -- (54)(a) -- 3 -- (3)(a) --
Investment Income, net....... 54 24 5(b) 35 15 3 1(b) 13
Interest Expense, net........ (77) (41) --(c) (36) (26) (9) --(c) (17)
Other, net................... (2) -- -- (2) 4 (1) -- 5
---------- ----- --- ------ ---------- ----- ----------- -----
29 (17) (49) (3) (4) (7) (2) 1
---------- ----- --- ------ ---------- ----- ----------- -----
Earnings (Loss) before Income
Taxes and Minority Interest in
Net Losses (Gains) of
Subsidiaries.................. (29) (153) (49) 75 (33) (64) (2) 29
Benefit (Provision) for Income
Taxes......................... 12 2 17(d) 27 (10) -- 1(d) (9)
Minority Interest in Net Losses
(Gains) of Subsidiaries....... 50 -- (49)(e) 1 19 -- (22)(e) (3)
---------- ----- --- ------ ---------- ----- ----------- -----
Net Earnings (Loss)........ $ 33 $(151) $(81) $ 103 $ (24) $ (64) $ (23) $ 17
---------- ----- --- ------ ---------- ----- ----------- -----
---------- ----- --- ------ ---------- ----- ----------- -----
Net Earnings (Loss) Per Common
and Common Equivalent Share... $1.63 $4.63 $(1.14) $0.74
---------- ------ ---------- -----
---------- ------ ---------- -----
Weighted Average Shares
Outstanding................... 20,438,806 22,389,129(f) 21,265,769 23,455,111(f)
</TABLE>
The accompanying notes are an integral part of these pro forma financial
statements.
F-19
<PAGE>
KIEWIT DIVERSIFIED GROUP
PRO FORMA CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 1 ASSUMING 3 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
ASSETS
<TABLE>
<CAPTION>
ADJUSTMENTS
HISTORICAL MFS (NOTE 3) PRO FORMA
---------- ------ ----------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Current Assets:
Cash and cash equivalents......................................................... $ 308 $ 44 $ 77(a) $ 341
Marketable securities............................................................. 608 205 -- 403
Receivable, net................................................................... 150 74 -- 76
Deferred income taxes............................................................. 14 -- -- 14
Other............................................................................. 109 69 40
---------- ------ ----------- ---------
Total Current Assets............................................................ 1,189 392 77 874
Property, Plant and Equipment, net.................................................. 1,200 765 -- 435
Investments......................................................................... 370 -- -- 370
Intangible Assets, net.............................................................. 740 395 -- 345
Other Assets........................................................................ 76 3 -- 73
---------- ------ ----------- ---------
$3,575 $1,555 $ 77 $2,097
---------- ------ ----------- ---------
---------- ------ ----------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable.................................................................. $ 172 $ 131 $-- $ 41
Current portion of long-term debt:
Telecommunications.............................................................. 28 19 -- 9
Other........................................................................... 3 -- (1)(b) 2
Accrued costs and billings in excess of revenue on uncompleted contracts.......... 37 29 -- 8
Accrued reclamation and other mining costs........................................ 17 -- -- 17
Other............................................................................. 145 62 12(c) 95
---------- ------ ----------- ---------
Total Current Liabilities....................................................... 402 241 11 172
Long-term Debt, less current portion:
Telecommunications................................................................ 845 561 -- 284
Other............................................................................. 77 -- (1)(b) 76
Deferred Income Taxes............................................................... 294 -- (93)(d) 201
Retirement Benefits................................................................. 48 -- -- 48
Accrued Reclamation Costs........................................................... 104 -- -- 104
Other Liabilities................................................................... 97 24 -- 73
Minority Interest................................................................... 436 10 (240)(e) 186
Stockholders' Equity:
Common equity..................................................................... 1,267 719 77(a)
2(b)
(12)(c)
93(d)
240(e) 948
Foreign currency adjustment....................................................... 1 2 -- (1)
Net unrealized holding gain (loss)................................................ 4 (2) -- 6
---------- ------ ----------- ---------
Total Stockholders' Equity...................................................... 1,272 719 400 953
---------- ------ ----------- ---------
$3,575 $1,555 $ 77 $2,097
---------- ------ ----------- ---------
---------- ------ ----------- ---------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-20
<PAGE>
KIEWIT DIVERSIFIED GROUP
PRO FORMA CONDENSED BALANCE SHEET
(UNAUDITED)
MARCH 31, 1995
(SCENARIO 2 ASSUMING 5 MILLION SHARES OF EXCHANGEABLE STOCK EXCHANGED FOR CLASS
D STOCK)
ASSETS
<TABLE>
<CAPTION>
ADJUSTMENTS
HISTORICAL MFS (NOTE 3) PRO FORMA
---------- ------ ----------- ---------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C>
Current Assets:
Cash and cash equivalents......................................................... $ 308 $ 44 $ 84(a) $ 348
Marketable securities............................................................. 608 205 44(a) 447
Receivable, net................................................................... 150 74 -- 76
Deferred income taxes............................................................. 14 -- -- 14
Other............................................................................. 109 69 40
---------- ------ ----------- ---------
Total Current Assets................................................................ 1,189 392 128 925
Property, Plant and Equipment, net.................................................. 1,200 765 -- 435
Investments......................................................................... 370 -- -- 370
Intangible Assets, net.............................................................. 740 395 -- 345
Other Assets........................................................................ 76 3 -- 73
---------- ------ ----------- ---------
$3,575 $1,555 $ 128 $2,148
---------- ------ ----------- ---------
---------- ------ ----------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable.................................................................. $ 172 $ 131 $-- $ 41
Current portion of long-term debt:................................................
Telecommunications.............................................................. 28 19 -- 9
Other........................................................................... 3 -- (1)(b) 2
Accrued costs and billings in excess of revenue on uncompleted contracts.......... 37 29 -- 8
Accrued reclamation and other mining costs........................................ 17 -- -- 17
Other............................................................................. 145 62 12(c) 95
---------- ------ ----------- ---------
Total Current Liabilities........................................................... 402 241 11 172
Long-term Debt, less current portion:...............................................
Telecommunications................................................................ 845 561 -- 284
Other............................................................................. 77 -- (1)(b) 76
Deferred Income Taxes............................................................... 294 -- (93)(d) 201
Retirement Benefits................................................................. 48 -- -- 48
Accrued Reclamation Costs........................................................... 104 -- -- 104
Other Liabilities................................................................... 97 24 -- 73
Minority Interest................................................................... 436 10 (240)(e) 186
Stockholders' Equity:
Common equity..................................................................... 1,267 719 128(a)
2(b)
(12)(c)
93(d)
240(e) 999
Foreign currency adjustment....................................................... 1 2 -- (1)
Net unrealized holding gain (loss)................................................ 4 (2) -- 6
---------- ------ ----------- ---------
Total Stockholders' Equity.......................................................... 1,272 719 451 1,004
---------- ------ ----------- ---------
$3,575 $1,555 $ 128 $2,148
---------- ------ ----------- ---------
---------- ------ ----------- ---------
</TABLE>
The accompanying notes are an integral part of this pro forma financial
statement.
F-21
<PAGE>
KIEWIT DIVERSIFIED GROUP
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS
1. BASIS OF REPORTING
The accompanying pro forma condensed financial statements of the Kiewit
Diversified Group ("the Group") are presented based upon the historical
financial statements and the notes thereto of the Group, as adjusted to remove
the earnings statement and balance sheet accounts of MFS and to give effect to
certain other elements of the MFS Recapitalization, the Exchange Offer and the
Spin-off, (together, the "Transactions"). The pro forma information assumes, in
two separate scenarios, that 3 million (Scenario 1) and 5 million (Scenario 2)
shares of the Exchangeable Stock and all the Exchangeable Debentures are
exchanged in the Exchange Offer. Such pro forma financial statements should be
read in conjunction with the separate historical financial statements and the
notes thereto of the Group incorporated herein by reference. Such pro forma
financial statements are not necessarily indicative of the future results of
operations or financial position.
Completion of the Transactions has been assumed to be as of March 31, 1995
in the pro forma condensed balance sheet and as of December 26, 1993 and January
1, 1995, in the pro forma condensed statements of operations for the year ended
December 31, 1994 and the three months ended March 31, 1995, respectively.
The significant accounting policies followed by the Group, described in the
notes to its historical financial statements incorporated herein by reference,
have been used in preparing the accompanying pro forma condensed financial
statements.
Although the pro forma financial statements of PKS' Diversified Group and
Construction & Mining Group separately report the assets, liabilities and
stockholders' equity of PKS attributed to each such group, legal title to such
assets and responsibility for such liabilities will not be affected by such
attribution. Holders of Class B, Class C Stock and Class D Stock are
stockholders of PKS. Accordingly, the PKS pro forma consolidated financial
statements and related notes should be read in conjunction with these pro forma
financial statements.
2. STATEMENTS OF OPERATIONS PRO FORMA ADJUSTMENTS
As described in Note 1, the historical statements of operations for the
Group have been adjusted to remove the income and expenses of MFS and to give
effect to certain other elements of the Transactions. The other adjustments made
in preparation of the Group's Pro Forma Statements of Operations are described
below:
(a) Adjustment made to reverse the gain recognized from MFS stock
transactions that would not have been recorded if the Transactions were
completed at the beginning of the periods.
(b) Adjustment made to recognize additional interest income on cash
transferred from Kiewit Construction & Mining Group upon exchange of 3
million shares of Exchangeable Stock to Class D Stock in Scenario 1 and
5 million shares of Exchangeable Stock to Class D Stock in Scenario 2.
The interest rate used to calculate the additional interest income
approximates the average rate earned by the Group during the periods.
(c) No adjustment has been made for the decrease in interest expense due to
the assumed exchange of the Exchangeable Debentures to stock as the
adjustment is less than $1 million.
(d) Adjustment made to reflect the tax effect of the above adjustments.
(e) Adjustment made to reverse the minority interest in the loss of MFS that
would not have been recorded if the Transactions were completed at the
beginning of the periods.
(f) Scenario 1 assumes 3 million shares of Exchangeable Stock are exchanged
for Class D Stock and Scenario 2 assumes 5 million shares of
Exchangeable Stock are exchanged for Class D
F-22
<PAGE>
KIEWIT DIVERSIFIED GROUP
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS (CONTINUED)
2. STATEMENTS OF OPERATIONS PRO FORMA ADJUSTMENTS (CONTINUED)
Stock at the prior year end conversion ratio. The pro forma weighted
average shares also include an additional 69,010 Class D Shares
attributable to the exchange of the Exchangeable Debentures.
3. BALANCE SHEET PRO FORMA ADJUSTMENTS
As described in Note 1, the historical balance sheet of the Group has been
adjusted to remove the balance sheet of MFS and give effect to certain other
elements of the Transactions. The paid-in capital and retained earnings of MFS
have been combined and reflected as retained earnings on the balance sheet of
MFS, for purposes of this pro forma presentation. The other adjustments made in
preparation of the Group's Pro Forma Condensed Balance Sheet are described
below:
(a) Adjustment made to reflect the increase in cash, cash equivalents and
marketable securities as the result of the exchange of 3 million shares
(Scenario 1) and 5 million shares (Scenario 2) of Exchangeable Stock at
the prior year end stock prices and conversion ratios.
(b) Adjustment made to reflect the exchange of the Exchangeable Debentures
for Class D Stock.
(c) Adjustment made to record the accrual of certain estimated corporate
United States Federal income taxes attributable to the corporate
built-in gain on the stock of MFS being distributed to certain
non-United States Class D stockholders.
(d) Adjustment made to reverse certain deferred tax liabilities recognized
on gains from MFS stock transactions that are no longer payable.
(e) Adjustment made to record the reversal of the minority interest in MFS.
4. EARNINGS PER SHARE
Primary earnings per share of common stock have been computed using the
weighted average number of shares outstanding during each period. Fully diluted
earnings per share have not been presented because they are not materially
different from primary earnings per share.
5. OTHER MATTERS
In 1974, a subsidiary of the Group ("Kiewit"), entered into a lease with
Whitney Benefits, Inc., a Wyoming charitable corporation ("Whitney"). Whitney is
the owner, and Kiewit is the lessee, of a coal deposit underlying a 1,300 acre
tract in Sheridan County, Wyoming. The coal was rendered unmineable by the
Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), which prohibited
surface mining of coal in certain alluvial valley floors significant to farming.
In 1983, Kiewit and Whitney filed an action, titled WHITNEY BENEFITS, INC. AND
PETER KIEWIT SONS' CO. V. THE UNITED STATES, in the U.S. Court of Federal Claims
("Claims Court"), alleging that the enactment of SMCRA constituted a taking of
their coal without just compensation. In 1989, the Claims Court ruled that a
taking had occurred and awarded plaintiffs the 1977 fair market value of the
property ($60 million) plus interest. In 1991, the U.S. Court of Appeals for the
Federal Circuit affirmed the decision of the Claims Court and the U.S. Supreme
Court denied certiorari. The government filed two post-trial motions in the
Claims Court during 1992. The government requested a new trial to redetermine
the 1977 value of the property. The government also filed a motion to reopen and
set aside the 1989 judgment as void and to dismiss plaintiffs' complaint for
lack of jurisdiction. In May 1994, the Claims Court entered an order denying
both motions. In February 1994, the Claims Court issued an opinion which
provided that the $60 million judgment would bear interest compounded annually
from 1977 until payment. The government appealed the February 1994 and May 1994
orders. A hearing on the appeals was held in February 1995.
F-23
<PAGE>
KIEWIT DIVERSIFIED GROUP
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS (CONTINUED)
5. OTHER MATTERS (CONTINUED)
On May 5, 1995, the government and the plaintiffs entered into a settlement
agreement. In settlement of all claims, the government agreed to pay plaintiffs
$200 million and plaintiffs agreed to deed the coal underlying the real property
to the government. Kiewit and Whitney agreed in 1992 that Kiewit would receive
67.5 percent of any award and Whitney would receive the remainder. Peter Kiewit
Sons' Co., a subsidiary of Kiewit Diversified Group Inc., received approximately
$135 million on June 2, 1995.
F-24
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final disposition of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertake to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudicated to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses (including attorneys' fees) which he
or she actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-law,
agreement, vote or otherwise.
Section 145 of the DGCL empowers a Delaware corporation to purchase and
maintain insurance on behalf of its officers and directors against any liability
asserted against them incurred while acting in such capacities or arising out of
their status as such.
In accordance with Section 145 of the DGCL, Article SIXTH of the Restated
Certificate of Incorporation of PKS (the "PKS Certificate") and the By-laws of
PKS (the "PKS By-laws") provide that PKS shall indemnify each person who is or
was a director, officer or employee of PKS (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
PKS as a director, officer or employee of another corporation, partnership,
joint venture, trust or other enterprise, to the fullest extent permitted under
subsections 145(a), (b) and (c) of the DGCL or any successor statute. The
indemnification provided by the PKS Certificate and the PKS By-laws shall not be
deemed exclusive of any other rights to which any of those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person. Article
SEVENTH of the PKS Certificate provides that a director of PKS shall not be
personally liable to PKS or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to PKS or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended further eliminating or limiting the personal liability of
directors, then the liability of a director of PKS shall be eliminated or
limited to the fullest extent permitted by the DGCL as so amended.
II-1
<PAGE>
In accordance with Section 145 of the DGCL, Article 7 of MFS' Restated
Certificate of Incorporation (the "MFS Restated Certificate") and MFS' By-Laws
(the "MFS By-Laws") provide that MFS shall indemnify each person who is or was a
director, officer or employee of MFS (including the heirs, executors,
administrators or estate of such person) or is or was serving at the request of
MFS as director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, to the fullest extent permitted under
subsections 145(a), (b), and (c) of the DGCL or any successor statute. The
indemnification provided by the MFS Restated Certificate and the MFS By-Laws
shall not be deemed exclusive of any other rights to which any of those seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his or her official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. Expenses (including
attorneys' fees) incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding upon receipt of an undertaking by or on
behalf of the indemnified person to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by MFS. Article 8 of
the MFS Restated Certificate provides that a director of MFS shall not be
personally liable to MFS or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to MFS or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
DGCL is amended to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of MFS
shall be eliminated or limited to the fullest extent permitted by the DGCL as so
amended.
Section 8.7 of the MFS By-Laws provides that MFS may purchase and maintain
insurance on behalf of its directors, officers, employees and agents against any
liabilities asserted against such persons arising out of such capacities.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
------------- ------------------------------------------------------------------------------------------------
<C> <S>
2.1 Form of Securities Purchase Agreement between KDG and MFS*
2.2 Form of Distribution Agreement by and among PKS, KDG, KCG and MFS*
4.1 Form of Certificate of Designations of the Series B Convertible Preferred Stock of MFS*
4.2 Form of Stock Certificate for the Series B Convertible Preferred Stock*
5.1 Opinion of Sutherland, Asbill & Brennan relating to legality of the Class C Stock and the Class
D Stock of PKS
5.2 Opinion of Willkie Farr & Gallagher relating to legality of the Common Stock of MFS and the
Series B Convertible Preferred Stock of MFS*
8 Ruling Letter from the Internal Revenue Service**
15 Letter of Coopers & Lybrand, L.L.P. relating to unaudited financial information
23.1 Consent of Coopers & Lybrand, L.L.P. relating to PKS financial statements
23.2 Consent of Coopers & Lybrand, L.L.P. relating to MFS financial statements
23.3 Consent of Peat Marwick LLP
23.4 Consent of Leon Constantin & Co.
23.5 Consent of Sutherland, Asbill & Brennan (included in its opinion filed as Exhibit 5.1)
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
------------- ------------------------------------------------------------------------------------------------
<C> <S>
23.6 Consent of Willkie Farr & Gallagher (included in its opinion filed as Exhibit 5.2)*
23.7 Consent of CS First Boston Corporation*
23.8 Consent of Lehman Brothers Inc.*
24 Powers of Attorney (included on signature pages)*
99.1 Form of Letter of Transmittal sent to holders of Class B Stock of PKS*
99.2 Form of Letter of Transmittal sent to holders of Class C Stock of PKS*
99.7 Form of Letter of Transmittal sent to holders of Convertible Debentures of PKS*
99.4 Consent of Person Named as Director*
99.5 Opinion of CS First Boston Corporation*
99.6 Opinion of Lehman Brothers Inc.*
99.3 Option Agreement
<FN>
------------------------
* Previously filed.
** Filed under an Application for Confidential Treatment pursuant to Rule 406.
</TABLE>
ITEM 22. UNDERTAKINGS
(1) Each of the undersigned registrants hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of such
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of each of
the registrants pursuant to the foregoing provisions, or otherwise, each of the
registrants has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by each of the registrants of
expenses incurred or paid by a director, officer or controlling person of such
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, each registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(3) Each of the undersigned registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the joint
prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(4) Each of the undersigned registrants hereby undertakes to supply by means
of a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-3
<PAGE>
(5) Each of the undersigned registrants hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by MFS pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of the Registration Statement
as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities
offered therein, and this 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, each of the
Registrants has duly caused this Amendment No. 2 to be signed on its behalf by
the undersigned, thereunto duly authorized, in Omaha, Nebraska on August 4,
1995.
<TABLE>
<S> <C>
Peter Kiewit Sons', Inc. MFS Communications Company, Inc.
By: /s/ WALTER SCOTT, JR. By: /s/ JAMES Q. CROWE
--------------------------------------- ---------------------------------------
Walter Scott, Jr. James Q. Crowe
President Chairman of the Board
</TABLE>
PKS DIRECTORS AND OFFICERS
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
/s/ WALTER SCOTT, JR.
------------------------------------------- Chairman of the Board and President August 4, 1995
Walter Scott, Jr. (Principal Executive Officer)
*
------------------------------------------- Vice Chairman and Director August 4, 1995
William L. Grewcock
Executive Vice President -- Chief
* Financial Officer
------------------------------------------- (Principal Financial Officer) and August 4, 1995
Robert E. Julian Director
*
------------------------------------------- Executive Vice President and August 4, 1995
Kenneth E. Stinson Director
*
------------------------------------------- Controller August 4, 1995
Eric J. Mortensen (Principal Accounting Officer)
------------------------------------------- Director August , 1995
Richard Geary
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
*
------------------------------------------- Director August 4, 1995
Leonard W. Kearney
*
------------------------------------------- Director August 4, 1995
Richard R. Jaros
*
------------------------------------------- Director August 4, 1995
George B. Toll, Jr.
------------------------------------------- Director August , 1995
Richard W. Colf
*
------------------------------------------- Director August 4, 1995
Bruce E. Grewcock
*
------------------------------------------- Director August 4, 1995
Tait P. Johnson
*
------------------------------------------- Director August 4, 1995
James Q. Crowe
------------------------------------------- Director August , 1995
Robert B. Daugherty
------------------------------------------- Director August , 1995
Charles M. Harper
------------------------------------------- Director August , 1995
Peter Kiewit, Jr.
/s/ MATTHEW J. JOHNSON
-------------------------------------------
Matthew J. Johnson
Attorney-In-Fact
</TABLE>
II-6
<PAGE>
MFS DIRECTORS AND OFFICERS
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
/s/ JAMES Q. CROWE Chairman of the Board and Chief
------------------------------------------- Executive Office August 4, 1995
James Q. Crowe (Principal Executive Officer)
Senior Vice President, Chief
* Financial Officer
------------------------------------------- (Principal Financial Officer) and August 4, 1995
R. Douglas Bradbury Director
*
------------------------------------------- Vice President and Controller August 4, 1995
Robert J. Ludvik (Principal Accounting Officer)
------------------------------------------- Director August , 1995
Howard Gimbel
*
------------------------------------------- Director August 4, 1995
Royce J. Holland
*
------------------------------------------- Director August 4, 1995
Richard R. Jaros
*
------------------------------------------- Director August 4, 1995
Robert E. Julian
------------------------------------------- Director August , 1995
David C. McCourt
------------------------------------------- Director August , 1995
Ronald W. Roskens
</TABLE>
II-7
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
------------------------------------------------------ ------------------------------------ -------------------
<C> <S> <C>
*
------------------------------------------- Director August 4, 1995
Walter Scott, Jr.
*
------------------------------------------- Director August 4, 1995
Kenneth E. Stinson
------------------------------------------- Director August , 1995
Michael B. Yanney
/s/ JAMES Q. CROWE
-------------------------------------------
James Q. Crowe
Attorney-In-Fact
</TABLE>
II-8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. PAGE NO.
------ ----------
<C> <S> <C>
2.1 Form of Securities Purchase Agreement between KDG and MFS*
2.2 Form of Distribution Agreement by and among PKS, KDG, KCG and
MFS*
4.1 Form of Certificate of Designations of the Series B Convertible
Preferred Stock of MFS*
4.2 Form of Stock Certificate for the Series B Convertible Preferred
Stock*
5.1 Opinion of Sutherland, Asbill & Brennan relating to legality of
the Class C Stock and the Class D Stock of PKS
5.2 Opinion of Willkie Farr & Gallagher relating to legality of the
Common Stock of MFS and the Series B Convertible Preferred Stock
of MFS*
8 Ruling Letter from the Internal Revenue Service**
15 Letter of Coopers & Lybrand, L.L.P. relating to unaudited
financial information
23.1 Consent of Coopers & Lybrand, L.L.P. relating to PKS financial
statements
23.2 Consent of Coopers & Lybrand, L.L.P. relating to MFS financial
statements
23.3 Consent of Peat Marwick LLP
23.4 Consent of Leon Constantin & Co.
23.5 Consent of Sutherland, Asbill & Brennan (included in its opinion
filed as Exhibit 5.1)
23.6 Consent of Willkie Farr & Gallagher (included in its opinion
filed as Exhibit 5.2)*
23.7 Consent of CS First Boston Corporation*
23.8 Consent of Lehman Brothers Inc.*
24 Powers of Attorney (included on signature pages)*
99.1 Form of Letter of Transmittal sent to holders of Class B Stock of
PKS*
99.2 Form of Letter of Transmittal sent to holders of Class C Stock of
PKS*
99.3 Form of Letter of Transmittal sent to holders of Convertible
Debentures of PKS*
99.4 Consent of Person Named as Director*
99.5 Opinion of CS First Boston Corporation*
99.6 Opinion of Lehman Brothers Inc.*
99.7 Option Agreement
<FN>
------------------------
* Previously filed.
** Filed under an Application for Confidential Treatment pursuant to Rule 406.
</TABLE>
<PAGE>
OPINION OF SUTHERLAND, ASBILL & BRENNAN
EXHIBIT 5.1
August 4, 1995
Peter Kiewit Sons', Inc.
1000 Kiewit Plaza
Omaha, NE 68131
Ladies and Gentlemen:
We have acted as counsel to Peter Kiewit Sons', Inc., a Delaware corporation
(the "Company"), in connection with its proposed offer to exchange (the
"Exchange Offer") (i) the Company's Class D Diversified Group Convertible
Exchangeable Common Stock, par value $0.0625 per share ("Class D Stock"), for
any and all outstanding shares of the Company's Class B Construction & Mining
Group Nonvoting Restricted Redeemable Convertible Exchangeable Common Stock, par
value $0.0625 per share ("Class B Stock"), and Class C Construction & Mining
Group Restricted Redeemable Convertible Exchangeable Common Stock, par value
$0.0625 per share ("Class C Stock"), (ii) Class C Stock and Class D Stock for
any and all of the Company's outstanding 1990 Series Convertible Debentures due
October 31, 2000 and 1991 Series Convertible Debentures due October 31, 2001 and
(iii) Class D Stock for any and all of the Company's outstanding 1993 Series
Class D Convertible Debentures due October 31, 2003, all as described in the
joint registration statement of the Company and MFS Communications Company,
Inc., a Delaware corporation, on Form S-4 (the "Registration Statement") filed
with the Securities and Exchange Commission. The Company's convertible
debentures described above are referred to collectively herein as the
"Exchangeable Debentures."
We have participated in the preparation of the Registration Statement and
have examined originals or copies, certified or otherwise identified to our
satisfaction by public officials or officers of the Company as authentic copies
of originals, of (i) the Company's Restated Certificate of Incorporation and its
by-laws, (ii) resolutions of the board of directors of the Company approving the
Exchange Offer and the issuance of Class C Stock and Class D Stock in connection
therewith and (iii) such other documents as in our judgment were necessary to
enable us to render the opinions expressed below. In our review and examination
of all such documents, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
and records submitted to us as originals, and the conformity with authentic
originals of all documents and records submitted to us as copies. We have also
assumed that, immediately prior to the time the Exchange Offer is consummated,
(i) each share of Class B Stock and Class C Stock issued and outstanding will be
duly authorized, validly issued, fully paid and nonassessable, and (ii) each
Exchangeable Debenture will be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms. To the
extent we have deemed appropriate, we have relied upon certificates of public
officials and certificates and statements of corporate officers of the Company
as to certain factual matters.
This opinion is limited to the laws of the State of Delaware, and we express
no opinion with respect to the laws of any other jurisdiction. We are not
members of the bar of the State of Delaware, and we have not consulted with
Delaware counsel with respect to this opinion letter. The opinions expressed in
this letter, insofar as they relate to matters governed by the laws of the State
of Delaware, are based on our review of the Delaware General Corporation Law,
with which we are familiar.
Based upon and subject to the foregoing and our investigation of such
matters of law as we have considered advisable, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware.
2. Upon the consummation of the Exchange Offer, the shares of Class C
Stock and Class D Stock issued in the Exchange Offer will be duly
authorized, validly issued, fully paid and nonassessable.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the "Legal Matters"
section of the joint prospectus included in the Registration Statement. We do
not admit by giving this consent that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Sutherland, Asbill & Brennan
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the joint registration
statement of Peter Kiewit Sons', Inc. and MFS Communications Company, Inc. on
Form S-4 Amendment No. 2 of our report dated March 20, 1995, of our audits of
the consolidated financial statements and financial statement schedules of Peter
Kiewit Sons', Inc. as of December 31, 1994 and December 25, 1993, and for the
three years ended December 31, 1994, which report is included in the Annual
Report on Form 10-K of Peter Kiewit Sons', Inc. We further consent to the
inclusion in the aforementioned registration statement of our reports dated June
9, 1995, of our audits of the pro forma consolidated condensed statement of
operations of Peter Kiewit Sons', Inc., Kiewit Construction and Mining Group, a
business group of Peter Kiewit Sons', Inc., and Kiewit Diversified Group, a
business group of Peter Kiewit Sons', Inc. for the year ended December 31, 1994.
We also consent to the reference to our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Omaha, Nebraska
August 4, 1995
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the joint registration
statement of Peter Kiewit Sons', Inc. and MFS Communications Company, Inc. on
Amendment No. 2 to Form S-4 of our report dated February 14, 1995, of our audits
of the consolidated financial statements of MFS Communications Company, Inc. and
Subsidiaries as of December 31, 1994 and 1993, and for each of the three years
in the period ended December 31, 1994, which report is incorporated by reference
to the 1994 Annual Report on Form 10-K/A Amendment No. 2 on May 15, 1995 of MFS
Communications Company, Inc. We also consent to the reference to our Firm under
the caption "Experts."
COOPERS AND LYBRAND L.L.P.
Omaha, Nebraska
August 4, 1995
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Amendment No. 2 to the
Registration Statement on Form S-4 of Peter Kiewit Sons', Inc. and MFS
Communications Company, Inc. of our report dated February 19, 1994, relating to
the consolidated balance sheets of Centex Telemanagement, Inc. as of December
31, 1993 and 1992, and the related consolidated statements of operations,
changes in stockholders' equity and cash flows and related schedules for each of
the years in the three-year period ended December 31, 1993 which report appears
in the May 18, 1994 Current Report on Form 8-K of MFS Communications Company,
Inc.
KPMG Peat Marwick LLP
San Francisco, California
August 3, 1995
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 2 to the
Registration Statement on Form S-4 of Peter Kiewit Sons', Inc. and MFS
Communications Company, Inc. of our report dated January 28, 1994, relating to
the balance sheets of Cylix Communications Corporation as of December 31, 1993
and 1992, and the related statements of operations, stockholders' equity and
cash flows for each of the years in the two year period ended December 31, 1993,
which report appears in the Form 8-K/A Amendment No. 1 of MFS Communications
Company, Inc., dated December 13, 1994. We also consent to the reference to our
firm under the caption "Experts".
Leon Constantin & Co.
New York, New York
August 3, 1995
<PAGE>
EXHIBIT 99.7
FORM OF OPTION AGREEMENT
Agreement dated as of April __, 1995, among Richard Geary ("Geary"), William
L. Grewcock ("Grewcock"), and Walter Scott, Jr. ("Scott").
1. Peter Kiewit Sons', Inc. ("PKS") has announced that it may distribute
all of the shares of capital stock of MFS Communications Company, Inc. ("MFS")
owned by it to the holders of PKS Class D Stock (the "Spin-off").
2. In the event the Spin-off is consummated, Geary shall have the right,
exercisable at any time during the six-month period beginning on the date on
which the Spin-off is consummated (the "Spin Date"), to sell to Grewcock and
Scott all, but not less than all, of the shares of MFS Common Stock and MFS
Preferred Stock received by Geary in connection with the Spin-off (the "Put
Right").
3. The purchase price (the "Purchase Price") per share for the shares to be
sold shall be, in the case of MFS Common Stock, the lowest of (i) the closing
price of the MFS Common Stock on the Spin Date, (ii) the closing price of the
MFS Common Stock on the date on which the Exercise Notice (defined below) is
delivered and (iii) $35.00 and, in the case of the MFS Preferred Stock, $1.00
per share.
4. To exercise the Put Right, Geary shall provide written notice to
Grewcock and Scott, setting forth the number of shares of MFS Common Stock and
MFS Preferred Stock he proposes to sell pursuant to paragraph 2 above (the
"Exercise Notice").
5. If Geary exercises the Put Right, unless otherwise agreed between Geary
and Scott, Grewcock and Scott shall each pay 50% of the Purchase Price and shall
each be entitled to receive 50% of the shares being sold hereunder. Such
Purchase Price shall be paid within fifteen business days of the date on which
Geary delivers the Exercise Notice by wire transfer to an account specified by
Geary. On such date, Geary shall deliver to Grewcock and Scott certificates
representing all of the shares sold hereunder, duly endorsed or accompanied by
appropriate stock powers.
______________________________________
Richard Geary
______________________________________
William L. Grewcock
______________________________________
Walter Scott, Jr.
