SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
Delaware 47-0210602
(State of incorporation or (I.R.S. Employer
organization) Identification No.)
1000 Kiewit Plaza
Omaha, Nebraska 68131
(Address of principal (Zip Code)
executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), please check the following
box. [ ]
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), please check the following
box. [x]
Securities Act registration statement file number to which this
form relates: 333-34627.
Securities to be registered pursuant to Section 12(g) of the Act:
Class R Convertible Common Stock, par value $.01 per share
(Title of class)
Item 1. Description of Registrant's Securities to be
Registered.
The description of the Registrant's Class R Convertible
Common Stock, par value $.01 per share (the "Common Stock"),
is incorporated herein by reference to the Registrant's
Registration Statement on Form S-4 (File No. 333-34627) as
filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended
(the "Securities Act"), on August 29, 1997, as amended by
Amendment No. 1 to the Registration Statement on Form S-4
filed on October 10, 1997, Amendment No. 2 to the
Registration Statement on Form S-4 filed on November 6, 1997
and Amendment No. 3 to the Registration Statement on Form S-
4 filed on November 10, 1997, which description shall be
deemed to be incorporated herein by reference.
Item 2. Exhibits.
1. The Restated Certificate of Incorporation of Peter
Kiewit Sons', Inc. is incorporated herein by reference to
Exhibit 3.1 to the Annual Report on Form 10-K of the
Registrant for the fiscal year ended December 28, 1991.
2. The Certificate of Amendment of the Restated
Certificate of Incorporation of Peter Kiewit Sons', Inc.,
dated as of December 8, 1997.
3. The Amended and Restated By-laws of the Registrant
are incorporated herein by reference to Exhibit 3.4 to the
Annual Report on Form 10-K of the Registrant for the fiscal
year ended December 26, 1992.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
PETER KIEWIT SONS', INC.
Dated: December 30, 1997 By: /s/ Matthew J. Johnson
Name: Matthew J. Johnson
Title: Vice President
EXHIBIT 2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
PETER KIEWIT SONS', INC.
Peter Kiewit Sons', Inc. (the "Corporation"), a
corporation organized under the laws of the State of Delaware,
hereby certifies that the following amendments to the
Corporation's Restated Certificate of Incorporation were duly
adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware:
FIRST: ARTICLE FOURTH of the Corporation's Restated
Certificate of Incorporation is amended by deleting the first
three paragraphs thereof, and replacing them with the following:
CAPITAL STOCK
The total number of shares of all classes of stock
which the Corporation shall have authority to issue is
641,750,000 shares; of which 250,000 shares shall be
Preferred Stock, with no par value per share; of which
8,000,000 shares shall be Class B Construction & Mining
Group Nonvoting Restricted Redeemable Convertible
Exchangeable Common Stock, par value $0.0625 per share (the
"Class B Stock"); of which 125,000,000 shares shall be
Class C Construction & Mining Group Restricted Redeemable
Convertible Exchangeable Common Stock, par value $0.0625 per
share (the "Class C Stock"); of which 500,000,000 shares
shall be Class D Diversified Group Convertible Exchangeable
Common Stock, par value $0.0625 per share, issuable in two
series (the "Class D Stock"); and of which 8,500,000
shares shall be Class R Convertible Common Stock, par value
$0.01 per share (the "Class R Stock").
Ten shares of the authorized but unissued shares of
Class D Stock as of the date of the filing of this
Certificate of Amendment of the Corporation's Restated
Certificate of Incorporation are hereby designated as
Class D Stock, Non-Redeemable Series. The rights, powers,
preferences, privileges, qualifications and limitations of
Class D Stock, Non-Redeemable Series shall be identical to
those of all other shares of Class D Stock, except as
described in ARTICLE NINTH hereof.
Shares of Class R Stock shall have such rights,
powers, preferences, privileges, qualifications and
limitations as are set forth in ARTICLE TENTH hereof, and
all of the rights, powers, preferences, privileges,
qualifications and limitations of the other classes of
capital stock of the Corporation shall be subject to such
rights, powers, preferences, privileges, qualifications and
limitations of the Class R Stock.
Certain terms used herein, each of which is
capitalized, are defined in ARTICLE EIGHTH.
A description of certain of the different classes of
stock and a statement of the designations, powers,
preferences, rights, qualifications, limitations and
restrictions of each of said classes of stock are as
follows:
SECOND: ARTICLE FOURTH of the Corporation's Restated
Certificate of Incorporation is amended by deleting subparagraph
III(D)(1)(c) thereof in its entirety.
THIRD: ARTICLE EIGHTH of the Corporation's Restated
Certificate of Incorporation is amended by deleting the
definition of "Effective Time" in its entirety.
FOURTH: The Corporation's Restated Certificate of
Incorporation is amended to insert a new ARTICLE NINTH to read as
follows:
ARTICLE NINTH
SERIES OF CLASS D STOCK
Notwithstanding any other provision hereof (i) with
respect to the Class D Stock, other than the next paragraph
of this ARTICLE NINTH, in no event shall (a) any holder of
Class D Stock, Non-Redeemable Series have any right to
require the Corporation to repurchase such holder's shares
of Class D Stock, Non-Redeemable Series; (b) Class D Stock,
Non-Redeemable Series be convertible into Class C Stock;
(c) Class D Stock, Non-Redeemable Series be subject to
exchange for Class C Stock by the Corporation; or (d) Class
D Stock, Non-Redeemable Series be subject to any redemption,
and (ii) holders of Class D Stock, Non-Redeemable Series
shall be entitled to vote with, and on the same terms as,
holders of Class C Stock for the election and removal of
Class C Directors.
In the event that the Class D Stock is Publicly Traded,
(i) each share of Class D Stock, Non-Redeemable Series shall
automatically, and without further action by or on behalf of
the Corporation, the Corporation's transfer agent or the
holder of any share of Class D Stock, Non-Redeemable Series,
be converted into a share of Class D Stock which is not
Class D Stock, Non-Redeemable Series, and the rights,
powers, preferences, privileges, qualifications and
limitations of such shares so converted shall be identical
to those of all other shares of Class D Stock in all
respects and (ii) Class D Stock, Non-Redeemable Series shall
no longer be designated as a separate series of Class D
Stock.
FIFTH: The Corporation's Restated Certificate of
Incorporation is amended to insert a new ARTICLE TENTH to read as
follows:
ARTICLE TENTH
CLASS R STOCK
A. Certain Definitions.
"Appraised Value" shall have the meaning given to it
in paragraph E.3. hereof.
"Attached Class R Stock" shall mean Class R Stock
which is attached to Construction Stock pursuant to the
terms hereof.
"Attached Transfer" shall mean the simultaneous
transfer to the same transferee of a share of Class R Stock
(or fraction thereof) and the share of Construction Stock to
which such share of Class R Stock (or fraction thereof) is
attached; provided that such transfer of such share of
Construction Stock is permitted by the Certificate of
Incorporation of the Corporation or PKS Holdings, as
applicable.
"Base Conversion Value" shall mean $25.00.
"Base Price" shall mean $82.00 per share, subject to
adjustment as provided in paragraph F. hereof.
"Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in the City of
New York or the city in which the Corporation's transfer
agent maintains its principal office or a place of payment
are authorized by law, regulation or executive order to
remain closed.
"Change of Control" shall mean the occurrence of any
of the following: (i) the sale, lease, transfer, conveyance
or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions,
of all or substantially all of the assets of the Corporation
and its subsidiaries taken as a whole, to any "person" (as
such term is used in Section 13(d)(3) of the Exchange Act);
(ii) the adoption of a plan relating to the liquidation or
dissolution of the Corporation; (iii) the consummation of
any transaction (including, without limitation, any merger
or consolidation) the result of which is that any "person"
(as defined above), becomes the "beneficial owner" (as
such term is defined in Rule 13d-3 and Rule 13d-5 under the
Exchange Act), directly or indirectly, of shares
representing more than 50% of the total outstanding voting
power of the Corporation or the surviving corporation of any
such merger or consolidation (if other than the
Corporation); (iv) the first day on which a majority of the
members of the Board of Directors are not Continuing
Directors; or (v) the adoption by the Board of Directors of
a plan for the distribution of all or substantially all of
the assets of the Corporation and its subsidiaries taken as
a whole, to stockholders of the Corporation; provided,
however, that the Class C Exchange shall not be considered a
Change of Control.
"Class C Exchange" shall mean the exchange by the
Corporation, pursuant to the Separation Agreement, of one
share of PKS Holdings Stock for each outstanding share of
Class C Stock.
"Construction Stock" shall mean (i) prior to the
Class C Exchange, Class C Stock, and (ii) after the Class C
Exchange, PKS Holdings Stock and any other capital stock to
which Class R Stock may be attached as provided in paragraph
B.3. hereof.
"Continuing Director" shall mean, as of any date of
determination, any member of the Board of Directors of the
Corporation who (i) was a member of such Board of Directors
immediately following the consummation of the Class C
Exchange or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of
the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election.
"Conversion Condition" shall mean, with respect to a
given share of Class R Stock (or fraction thereof), the
occurrence of the earliest of: (i) the repurchase or
redemption by the Corporation or PKS Holdings of the share
of Construction Stock to which it is attached; (ii) the
exchange of the share of Construction Stock to which it is
attached into another class of stock or securities of PKS
Holdings intended to be issued primarily to persons leaving
employment of PKS Holdings; (iii) April 15, 2006; and (iv) a
Change of Control of the Corporation; provided, however,
that the Conversion Condition shall not be deemed to have
occurred as a result of the Class C Exchange.
"Conversion Ratio" shall have the meaning given to it
in paragraph E.
"Conversion Ratio Certificate" shall mean either a
Private Conversion Ratio Certificate or a Public Conversion
Ratio Certificate, each having the meaning given to it in
paragraph E. hereof.
"Conversion Value" shall mean, as of any given date,
the Conversion Value set forth in the most recent Conversion
Ratio Certificate delivered pursuant to paragraph E. hereof
on or prior to such date, subject to any adjustment required
by paragraph F. hereof. The Conversion Value set forth in
any such Conversion Ratio Certificate shall be equal to:
(i) in the event that the Trading Price is greater than or
equal to the Base Price, the Base Conversion Value; (ii) in
the event that the Trading Price is less than the Base
Price, an amount equal to (a) the Base Conversion Value
minus (b) an amount equal to (x) the Excess Amount Factor,
multiplied by (y) the amount by which the Base Price exceeds
the Trading Price; provided, however, that in no event shall
the Conversion Value be less than the Minimum Value.
"Convertible Security" shall mean any right or
warrant to subscribe for or to purchase, or any option for
the purchase of, shares of Class D Stock or any stock, or
other securities convertible into or exchangeable for shares
of Class D Stock; provided, however, that Class R Stock
shall not be a Convertible Security.
"Current Trading Value" of any Publicly Traded
security on a given date shall mean the arithmetic mean of
the daily Mean Reported Prices of such security for each
Business Day during the period commencing on and including
the fourteenth Business Day preceding such date and ending
on and including such date.
"Excess Amount Factor" shall mean 1.0, subject to
adjustment as provided in paragraph F. hereof.
"Exchange Act" shall mean the Securities Exchange Act
of 1934.
"Extraordinary Dividend" shall mean any dividend, or
portion thereof, on the Class D Stock (i) paid in property
other than (a) cash, (b) shares of Class D Stock or in a
subdivision of the outstanding shares of Class D Stock (by
reclassification or otherwise) or (c) pursuant to any rights
agreement in connection with a stockholder rights plan
approved by the Board of Directors or (ii) paid in cash, to
the extent that such dividend, together with all cash
dividends paid on the Class D Stock during the twelve-month
period ending on the date of payment of such dividend
exceeds, on a per share basis, 10% of the Trading Price of
the Class D Stock as of the record date of such dividend;
provided, however, that in no event shall such excess be
greater than the amount of such dividend.
"Fixed Conversion Value" shall mean $25.00, as
adjusted pursuant to paragraph F. hereof.
"Fixed Terms" shall mean each of the Fixed Conversion
Value and the Base Price, each as adjusted pursuant to
paragraph F. hereof.
"Initial Issuance Date" shall mean the date of
issuance of the first share of Class R Stock (or fraction
thereof) to be issued.
"Inverse Fixed Terms" shall mean each of the Excess
Amount Factor and the Minimum Conversion Liquidation Ratio,
each as adjusted pursuant to paragraph F. hereof.
"Investment Bank" shall mean any investment bank of
national reputation selected by the Board of Directors.
"Liquidation Ratio" shall mean, as of any date, a
fraction, the numerator of which is the product of (i) the
number of shares of Class R Stock outstanding as of such
date and (ii) the Conversion Ratio, the denominator of which
is the sum of (a) the number of shares of Class D Stock
outstanding as of such date and (b) the numerator of such
fraction; provided, however, that in no event shall the
Conversion Ratio used to calculate such Liquidation Ratio be
less than the Minimum Conversion Liquidation Ratio.
"Mandatory Conversion Date" shall mean April 15,
2010.
"Mandatory Redemption Date" shall mean October 15,
1998, or such later date as shall be determined by
resolution of the Board of Directors, a copy of which shall
be made available to any stockholder of the Corporation upon
request thereby.
"Mean Reported Price" shall mean on a given day with
respect to any Publicly Traded security, the arithmetic mean
between the highest reported sales price and the lowest
reported sales price, in each case regular way, for such
security, as reported on the Composite Quotation System, or,
if such security is not reported on the Composite Quotation
System, on the principal national securities exchange on
which such security is listed or admitted to trading, or if
such security is not listed or admitted to trading on any
national securities exchange, reported by the Nasdaq
National Market or Nasdaq SmallCap Market, as appropriate,
or a similar organization if Nasdaq is no longer reporting
such information.
"Minimum Conversion Liquidation Ratio" shall mean
0.25, as adjusted pursuant to paragraph F. hereof.
"Minimum Value" shall mean $15.00.
"Permitted Transfer" shall mean any transfer of
Class R Stock to the Corporation or any designee of the
Corporation, including the Mandatory Redemption, a Forced
Conversion or the Mandatory Conversion.
"PKS Holdings" shall mean PKS Holdings, Inc.,
together with its successors and assigns.
"PKS Holdings Stock" shall mean common stock, par
value $.01 per share, of PKS Holdings.
"Private Conversion Period" shall mean the 25-day
period commencing on and including the first day following
the Corporation's mailing to the registered holders of
Class R Stock of a Private Conversion Ratio Certificate;
provided, however, that in 2006 such term shall run through
May 15, 2006, regardless of the date of such mailing.
"Public Conversion Period" shall mean the period
commencing on and including the first Business Day of each
calendar month, through and including the fifth Business Day
thereafter, except for the calendar month of April 2010, for
which the Public Conversion Period shall mean the period
from and including the first Business Day of such month,
through and including April 15, 2010.
"Regular Dividend" shall mean any dividend on the
Class D Stock paid in cash that is not an Extraordinary
Dividend.
"Restricted Period Termination Date" shall mean, with
respect to a given share of Class R Stock (or fraction
thereof), the date on which the Conversion Condition with
respect to such share of Class R Stock (or fraction thereof)
has been satisfied.
"Separation Agreement" shall mean that certain
Separation Agreement to be entered into by and among the
Corporation, PKS Holdings, Kiewit Diversified Group Inc.
and Kiewit Construction Group Inc.
"Trading Price" shall mean, as of any date, the
Trading Price set forth in the most recent Conversion Ratio
Certificate, as described in paragraphs E.3. and E.4.
hereof.
B. Issuance and Attachment.
1. When issued, each share of Class R Stock (or fraction
thereof) shall attach to the share of Class C Stock with
respect to which it was distributed.
2. Upon the occurrence of the Class C Exchange, each
share of Class R Stock (or fraction thereof) attached to a
share of Class C Stock shall, automatically and without
further action by or on behalf of the Corporation, PKS
Holdings, the Corporation's transfer agent or the holder of
such share of Class R Stock or Class C Stock, attach to the
share of PKS Holdings Stock for which such share of Class C
Stock was exchanged.
3. In the event that the Corporation or PKS Holdings
shall (i) pay a dividend on Construction Stock in shares of
Construction Stock, (ii) subdivide its outstanding shares of
Construction Stock, (iii) combine its outstanding shares of
Construction Stock into a smaller number of shares of
Construction Stock or (iv) issue any shares of capital stock
in a reclassification of Construction Stock (including any
such reclassification in connection with a consolidation or
merger), shares of Class R Stock (or fractions thereof)
which were attached to Construction Stock immediately prior
to the occurrence of any such event shall, upon the
effectiveness of any such event, attach on a pro rata basis
to (x) the Construction Stock held by such holder to which
such shares of Class R Stock (or fractions thereof) were
attached; and/or (y) any capital stock so issued having
ownership restrictions comparable to those applicable to the
Class C Stock at the time of the Class C Exchange to which
such shares of Class R Stock (or fractions thereof) were
attached at such time, as appropriate.
Except as described in paragraph B.2. hereof, a share
of Class R Stock (or fraction thereof) shall detach from the
share of Construction Stock to which it is attached only
upon the occurrence of (i) the Conversion Condition with
respect to such share of Class R Stock (or fraction
thereof), or (ii) a Permitted Transfer. If, at any time
prior to the first anniversary of the Class C Exchange, any
holder, who had sold or transferred to the Corporation prior
to the Class C Exchange shares of Class C Stock to which
Class R Stock was attached purchases or acquires
Construction Stock, the number of shares of Class R Stock
(or fractions thereof) held by such holder which are not
attached to Construction Stock multiplied by the
Reattachment Ratio shall, unless otherwise determined by the
Board of Directors, immediately attach, without further
action by or on behalf of the Corporation, PKS Holdings, the
Corporation's transfer agent or the holder of such share of
Construction Stock, to such newly purchased or acquired
shares of Construction Stock on a pro rata basis, and the
Conversion Condition and the Restricted Period Termination
Date shall be deemed not to have occurred with respect to
such shares of Class R Stock (and fractions thereof) so
attached.
"Reattachment Ratio" shall mean the lesser of (i) 1.0
or (ii) a fraction, the numerator of which equals the
purchase price paid to the Corporation or PKS Holdings, as
applicable, for such newly purchased or acquired shares of
Construction Stock, and the denominator of which equals the
purchase price paid to such holder by the Corporation for
such repurchase of such shares of Class C Stock.
4. Certificates representing Attached Class R Stock
shall contain such legends as the Corporation shall deem
appropriate.
C. Transfer Restrictions.
1. Except for an Attached Transfer, no share of Class R
Stock (or fraction thereof) may be transferred prior to the
Class C Exchange other than pursuant to the Mandatory
Redemption. Following the Class C Exchange and prior to the
occurrence of the Restricted Period Termination Date for a
given share of Class R Stock (or fraction thereof), any
attempted transfer of such share of Class R Stock (or
fraction thereof), except an Attached Transfer, a Permitted
Transfer or pursuant to the Mandatory Redemption, shall be
void and of no effect. Neither the Corporation nor its
transfer agent shall register any attempted transfer of any
certificate representing a share of Class R Stock (or
fraction thereof) prior to the occurrence of the Restricted
Period Termination Date for such share of Class R Stock (or
fraction thereof), except an Attached Transfer or a
Permitted Transfer. For purposes hereof, neither the Class C
Exchange, the attachment of Class R Stock to PKS Holdings
Stock upon the occurrence of the Class C Exchange nor the
reattachment of Class R Stock to PKS Holdings Stock pursuant
to paragraph B.3. hereof shall be considered a transfer of
Class R Stock.
2. Following the Class C Exchange and the occurrence of
the Restricted Period Termination Date for a given share of
Class R Stock (or fraction thereof), such share of Class R
Stock (or fraction thereof) shall separate from the share of
PKS Holdings Stock to which it was attached and, until the
close of business on the Mandatory Conversion Date, shall be
freely transferable, and the Corporation or its transfer
agent shall from time to time register the transfer of the
certificate representing such share of Class R Stock (or
fraction thereof) upon the books of the Corporation, upon
surrender of such certificate, duly endorsed, accompanied by
documentation reasonably satisfactory to the Corporation
evidencing that the Restricted Period Termination Date has
occurred with respect to such Class R Stock (or fraction
thereof).
3. In the event of an Attached Transfer or a Permitted
Transfer of a share of Class R Stock (or fraction thereof)
following the Class C Exchange and prior to the Restricted
Period Termination Date of such share of Class R Stock (or
fraction thereof), the Corporation or its transfer agent
shall from time to time register such Attached Transfer or
Permitted Transfer of the certificate representing such
share of Class R Stock (or fraction thereof) upon the books
of the Corporation, upon surrender of such certificate, duly
endorsed, accompanied by documentation reasonably
satisfactory to the Corporation evidencing the Attached
Transfer or Permitted Transfer, as the case may be, of such
Class R Stock.
D. Optional Conversion.
1. Subject to the provisions hereof, each share of Class
R Stock may be converted, at the option of the holder
thereof (an "Optional Conversion"), into the number of
fully paid and nonassessable shares of Class D Stock which
are not Class D Stock, Non-Redeemable Series, equal to the
Conversion Ratio then in effect, and each fraction of a
share of Class R Stock may be converted into the number of
fully paid and nonassessable shares of such Class D Stock
equal to such fraction multiplied by the Conversion Ratio
then in effect. No share of Class R Stock (or fraction
thereof) may be converted into Class D Stock prior to the
occurrence of the Conversion Condition with respect to such
share of Class R Stock (or fraction thereof), except as
provided in paragraph K. hereof.
2. Other than as set forth in paragraphs K. and L.
hereof, Class R Stock may not be converted into Class D
Stock except as follows:
a) In the event that the Class D Stock is not
Publicly Traded, each share of Class R Stock (or
fraction thereof) for which the Conversion Condition
has been met may be converted into Class D Stock on any
Business Day during any Private Conversion Period
following the earlier of (i) December 31, 1999, or (ii)
a Change of Control; and
b) In the event that the Class D Stock is
Publicly Traded, each share of Class R Stock (or
fraction thereof) for which the Conversion Condition
has been met may be converted into Class D Stock on any
Business Day during any Public Conversion Period after
the Blackout Period. The "Blackout Period" shall mean
the 90-day period commencing on the first day on which
the Class D Stock is Publicly Traded; provided,
however, that the Board of Directors may, by
resolution, extend the Blackout Period up to 180 days
from the first day on which the Class D Stock is
Publicly Traded if so requested by a managing
underwriter of Class D Stock in connection with an
underwritten initial public offering thereof. A copy of
such resolution of the Board of Directors shall be made
available to any stockholder of the Corporation upon
request thereby.
3. Upon the occurrence of any Mandatory Redemption,
Forced Conversion or Mandatory Conversion of Class R Stock
or any liquidation of the Corporation, the right of Optional
Conversion shall terminate at the close of business on the
full Business Day next preceding the date fixed for such
Mandatory Redemption, Forced Conversion or Mandatory
Conversion or for the payment of any amounts distributable
on liquidation to the holders of Class R Stock.
4. The Corporation may issue fractions of shares of
Class R Stock. The Corporation shall not issue fractions of
shares of Class D Stock or scrip in lieu thereof upon
conversion of Class R Stock. If any fraction of a share of
Class D Stock would, except for the provisions of this
paragraph D.4., be issuable upon conversion of any Class R
Stock, the Corporation shall in lieu thereof pay to the
person entitled thereto an amount in cash equal to the
Trading Price then in effect multiplied by the fraction
represented by such fraction of a share of Class D Stock.
5. In order to exercise the Optional Conversion
privilege, the holder of any Class R Stock to be converted
shall surrender such holder's certificate or certificates
therefor to the principal office of the transfer agent for
the Class R Stock (or if no transfer agent be at the time
appointed, then the Corporation at its principal office),
and shall give written notice to the Corporation at such
office that the holder elects to convert the Class R Stock
represented by such certificates, or any number thereof.
Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares
of Class D Stock which shall be issuable on such conversion,
and for any shares of Class R Stock (or fractions thereof)
represented by the certificate or certificates so
surrendered which are not to be converted, shall be issued,
subject to any restrictions on transfer relating to such
shares of the Class R Stock (or fractions thereof). If so
required by the Corporation, certificates surrendered for
conversion shall be duly endorsed and accompanied by
documentation satisfactory to the Corporation evidencing
that the Restricted Period Termination Date has occurred
with respect to such Class R Stock.
6. As soon as practicable after receipt during a
Conversion Period of such notice and documentation and the
surrender of the certificate or certificates for Class R
Stock for which the Conversion Condition has been met, as
aforesaid, the Corporation shall cause to be issued and
delivered at such office to such holder, or on his or its
written order, a certificate or certificates for the number
of full shares of Class D Stock issuable on such conversion
in accordance with the provisions hereof, cash as provided
in paragraph D.4. hereof in respect of any fraction of a
share of Class D Stock otherwise issuable upon such
conversion and a certificate or certificates for the number
of shares of Class R Stock (or fractions thereof)
representing the shares of Class R Stock (or fractions
thereof) surrendered pursuant to paragraph D.5. hereof but
not so converted. Such shares of Class D Stock, when
issued, shall be fully paid and nonassessable and free from
all taxes, liens, charges and security interests created by
or imposed upon the Corporation with respect to the issuance
and holding thereof.
7. The Corporation shall at all times when the Class R
Stock shall be outstanding reserve and keep available out of
its authorized but unissued Class D Stock, for the purposes
of effecting the conversion of the Class R Stock, such
number of its duly authorized shares of Class D Stock as
shall from time to time be sufficient to effect the
conversion of all outstanding Class R Stock. Before taking
any action which would cause an adjustment reducing the
Conversion Value below the then par value of the shares of
Class D Stock issuable upon conversion of the Class R Stock,
the Corporation shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that
the Corporation may validly and legally issue fully paid and
nonassessable shares of such Class D Stock at such adjusted
Conversion Value.
8. All shares of Class R Stock (and fractions thereof)
which shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding and all
rights with respect to such shares, including the rights, if
any, to receive notices and to vote, shall forthwith cease
and terminate except only the right of the holder thereof to
receive shares of Class D Stock and cash for fractional
shares of Class D Stock in exchange therefor and payment of
any accrued and unpaid dividends thereon. Any shares of
Class R Stock (and fractions thereof) so converted shall be
retired and canceled and shall not be reissued, and the
Corporation shall from time to time take such appropriate
action as may be necessary to reduce the authorized Class R
Stock accordingly.
E. Determination of Conversion Ratio; Obligation of the
Corporation to Provide Conversion Ratio Certificates
and Appraisals.
1. The Conversion Ratio, Conversion Value and Trading
Price used for any purpose, including with respect to the
conversion of Class R Stock, shall be as set forth in the
most recent Conversion Ratio Certificate, and shall in any
case be as adjusted pursuant to paragraph F. hereof;
provided, however, that prior to the delivery of the first
Conversion Ratio Certificate, the Conversion Value shall be
the Fixed Conversion Value, the Trading Price shall be the
Base Price and the Conversion Ratio shall be equal to the
Fixed Conversion Value divided by the Base Price, as each of
such terms shall be adjusted pursuant to the terms hereof.
2. The "Conversion Ratio" shall be equal to (i) the
Conversion Value divided by (ii) the Trading Price.
3. If, at the end of any fiscal year of the Corporation,
beginning with the end of the fiscal year ending in 1999,
the Class D Stock is not Publicly Traded, the Corporation
shall, no earlier than 20 days nor later than 60 days
following the end of such fiscal year, cause to be provided
to each office designated for conversion of Class R Stock, a
copy of a certificate (the "Private Conversion Ratio
Certificate") signed by two officers of the Corporation
setting forth the Conversion Ratio, Conversion Value and
Trading Price as of the end of such fiscal year, calculated
in each case pursuant to this paragraph E. In addition, if a
Change of Control occurs when the Class D Stock is not
Publicly Traded, the Corporation shall within 60 days
following such Change of Control, cause to be provided to
each office designated for conversion of Class R Stock, such
a Private Conversion Ratio Certificate.
The "Trading Price" set forth in such Private
Conversion Ratio Certificate shall be the Appraised Value
set forth in the most recent Appraisal delivered to the
Corporation and approved by the Board of Directors.
If, at the end of any fiscal year of the Corporation,
beginning with the end of the fiscal year ending in 1999,
the Class D Stock is not Publicly Traded, the Corporation
shall cause to be prepared and delivered to the Board of
Directors and approved by the Board of Directors, prior to
60 days following the end of such fiscal year, an appraisal
(an "Appraisal") of the per share value of the Class D
Stock as of the last day of such fiscal year by an
Investment Bank. If a Change of Control occurs or the Board
of Directors should determine to cause a Forced Conversion,
and the Class D Stock is not Publicly Traded, the
Corporation shall cause to be prepared and delivered to the
Board of Directors and approved by the Board of Directors,
within 60 days following such Change of Control or
determination of the Board of Directors, an Appraisal of the
per share value of the Class D Stock as of the date of such
Change of Control or determination of the Board of
Directors. Such Investment Bank shall determine the per
share value of the Class D Stock as if the Class D Stock was
Publicly Traded and shall submit such per share value to the
Board of Directors for its approval. The value per share of
the Class D Stock as approved by the Board of Directors
shall be the "Appraised Value." In determining the
Appraised Value, the Investment Bank shall place
substantial, but not exclusive, emphasis on valuations of
comparable companies in the public equity markets, and shall
not take into account factors such as control premiums,
minority discounts or illiquidity discounts that would not
generally apply to such companies.
As promptly as practicable following its delivery of
any Private Conversion Ratio Certificate, the Corporation
shall cause to be given to each of the registered holders of
Class R Stock at such holder's address appearing upon the
books of the Corporation a copy of such Private Conversion
Ratio Certificate by first class mail, postage prepaid.
4. During any period in which the Class D Stock is
Publicly Traded, the Corporation shall, on the last Business
Day of each calendar month, cause to be provided to each
office designated for conversion of Class R Stock, a copy of
a certificate (the "Public Conversion Ratio Certificate"),
signed by two officers of the Corporation, setting forth the
Conversion Ratio, Conversion Value and Trading Price as of
the close of business on such Business Day, calculated in
each case pursuant to this paragraph E.
The "Trading Price" set forth in such Public
Conversion Ratio Certificate shall be equal to the Current
Trading Value of one share of Class D Stock as of the close
of business on the last Business Day of such calendar month.
Notwithstanding anything herein to the contrary, if, during
any period being used to calculate such Current Trading
Value (the "Calculation Period"), any event has occurred
to cause the Conversion Ratio and/or the Conversion Value to
be adjusted pursuant to paragraph F. hereof (an "Adjustment
Event"), the Corporation shall in good faith determine such
Conversion Ratio and/or the Conversion Value, as
appropriate, so as to give pro forma effect to the
Adjustment Event immediately prior to the Calculation
Period.
The Corporation shall provide any holder of Class R
Stock with a copy of any Public Conversion Ratio Certificate
upon request. Beginning on the day on which the first Public
Conversion Ratio Certificate is provided pursuant to this
paragraph E.4., the Corporation shall maintain a reasonable
means to allow holders to be informed of the value of the
Conversion Ratio as set forth in the most recent Public
Conversion Ratio Certificate on an immediate basis during
business hours on each Business Day on which Class R Stock
is issued and outstanding.
5. All calculations and determinations required to be
made by the Corporation pursuant hereto shall be made by the
Corporation in good faith. All such calculations and
determinations shall be conclusive unless otherwise
specifically provided hereby.
6. Conversion Ratio Certificates may, at the
Corporation's discretion, be prepared by an agent of the
Corporation. In such case each such Conversion Ratio
Certificate shall be signed by an authorized signatory of
such agent and countersigned by two officers of the
Corporation.
7. Upon any conversion of Class R Stock into Class D
Stock, in no event shall any such Class R Stock be converted
into Class D Stock, Non-Redeemable Series.
F. Anti-Dilution Provisions.
1. If the Corporation shall (a) pay a dividend on any of
its shares of capital stock (including Class D Stock) in
shares of Class D Stock, (b) subdivide its outstanding
shares of Class D Stock, (c) combine its outstanding shares
of Class D Stock into a smaller number of shares of Class D
Stock or (d) in an event or manner other than as set forth
in paragraph F.4. below, issue any shares of its capital
stock in a reclassification of the Class D Stock (each, a
"Conversion Term Adjustment Event"):
a) Each of the Fixed Terms shall be adjusted to
the value determined by multiplying (x) the Fixed Term
immediately prior to such Conversion Term Adjustment
Event, by (y) a fraction, the numerator of which is the
number of shares of Class D Stock outstanding
immediately prior to such Conversion Term Adjustment
Event, and the denominator of which is the number of
shares of Class D Stock outstanding immediately after
such Conversion Term Adjustment Event; and
b) Each of the Inverse Fixed Terms shall be
adjusted to the value determined by multiplying (x)
such Inverse Fixed Term immediately prior to such
Conversion Term Adjustment Event, by (y) a fraction,
the numerator of which is the number of shares of
Class D Stock outstanding immediately after such
Conversion Term Adjustment Event, and the denominator
of which is the number of shares of Class D Stock
outstanding immediately prior to such Conversion Term
Adjustment Event.
2. If the Corporation shall issue Convertible Securities
to all holders of its outstanding Class D Stock (other than
pursuant to any rights agreement in connection with a
stockholder rights plan approved by the Board of Directors),
without payment of additional consideration by such holders,
entitling them (for a period expiring within 45 days after
the record date mentioned below) to subscribe for or
purchase shares of Class D Stock at a price per share that
is lower than the Trading Price as set forth in the most
recent Conversion Ratio Certificate prior to the record date
mentioned below (or, if no Conversion Ratio Certificate has
yet been provided, equal to the Base Price immediately prior
to such record date) (a "Discounted Stock Adjustment
Event"):
a) Each of the Fixed Terms shall be adjusted to
the value determined by multiplying (x) such term
immediately prior to such Discounted Stock Adjustment
Event, by (y) a fraction, (i) the numerator of which
shall be the number of shares of Class D Stock
outstanding on the date of such Discounted Stock
Adjustment Event plus the number of shares which the
aggregate offering price of the total number of shares
of Class D Stock so offered would purchase at the price
per share of Class D Stock equal to the Trading Price
as set forth in the most recent Conversion Ratio
Certificate prior to the record date mentioned below
(or, if no Conversion Ratio Certificate has yet been
provided, equal to the Base Price immediately prior to
such record date), and (ii) the denominator of which
shall be the number of shares of Class D Stock
outstanding on the date of such Discounted Stock
Adjustment Event plus the number of additional shares
of Class D Stock offered for subscription or purchase.
b) Each of the Inverse Fixed Terms shall be
adjusted to the value determined by multiplying (x)
such term immediately prior to such Discounted Stock
Adjustment Event, by (y) a fraction, (i) the numerator
of which shall be the number of shares of Class D Stock
outstanding on the date of such Discounted Stock
Adjustment Event plus the number of additional shares
of Class D Stock offered for subscription or purchase,
and (ii) the denominator of which shall be the number
of shares of Class D Stock outstanding on the date of
such Discounted Stock Adjustment Event plus the number
of shares which the aggregate offering price of the
total number of shares of Class D Stock so offered
would purchase at the price per share of Class D Stock
equal to the Trading Price as set forth in the most
recent Conversion Ratio Certificate prior to the record
date mentioned below (or, if no Conversion Ratio
Certificate has yet been provided, equal to the Base
Price immediately prior to such record date).
Such adjustment shall be made whenever such Convertible
Securities are issued, and shall become effective
immediately on the date of issuance retroactive to the
record date for the determination of stockholders entitled
to receive such Convertible Securities.
3. If the Corporation shall pay any Regular Dividend or
Extraordinary Dividend (a "Dividend Adjustment Event"):
a) Each of the Fixed Terms shall be adjusted to
such value determined by multiplying (x) such term
immediately prior to such Dividend Adjustment Event, by
(y) a fraction, (i) the numerator of which shall be the
Trading Price immediately prior to such Dividend
Adjustment Event minus the per share amount received by
holders of Class D Stock in connection with such
dividend, and (ii) the denominator of which shall be
the Trading Price immediately prior to such Dividend
Adjustment Event.
b) Each of the Inverse Fixed Terms shall be
adjusted to such value determined by multiplying (x)
such term immediately prior to such Dividend Adjustment
Event, by (y) a fraction, (i) the numerator of which
shall be the Trading Price immediately prior to such
Dividend Adjustment Event, and (ii) the denominator of
which shall be the Trading Price immediately prior to
such Dividend Adjustment Event minus the per share
amount received by holders of Class R Stock in
connection with such dividend.
Any non-cash portions of an Extraordinary Dividend set forth in
this paragraph F.3. shall be based upon the fair market value of
such non-cash portion at the time such Extraordinary Dividend is
declared or paid, as determined in good faith by the Board of
Directors.
4. If any capital reorganization or reclassification of
the capital stock of the Corporation, or consolidation or
merger of the Corporation with another corporation, or share
exchange involving the outstanding shares of the
Corporation's capital stock or the sale of all or
substantially all of its assets to another corporation shall
be effected in such a way that holders of Class D Stock
shall be entitled to receive stock, securities, cash or
other property with respect to or in exchange for Class D
Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger, share exchange or
sale, lawful and adequate provision shall be made whereby
the holders of the Class R Stock shall have the right to
acquire and receive upon conversion of the Class R Stock
(after and subject to the rights of holders of Preferred
Stock, if any), such shares of stock, securities, cash or
other property issuable or payable (as part of the
reorganization, reclassification, consolidation, merger,
share exchange or sale) with respect to or in exchange for
such number of outstanding shares of Class D Stock as would
have been received upon conversion of the Class R Stock at
the Conversion Ratio immediately prior to such event. The
Corporation shall not effect any such consolidation, merger
or sale, unless prior to the consummation thereof the
successor corporation (if other than the Corporation)
resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written
instrument mailed or delivered to the holders of the Class R
Stock at the last address of each such holder appearing on
the books of the Corporation, the obligation to deliver to
each such holder such shares of stock, securities or assets
as, in accordance with the foregoing provisions, such holder
may be entitled to receive upon conversion of such holder's
shares of Class R Stock.
5. The Corporation shall not effect a reclassification
of the Class R Stock without the approval of holders of a
majority of the shares of Class R Stock.
6. The provisions of this paragraph F. shall not apply
to any Class D Stock issued, issuable or deemed outstanding
pursuant hereto: (a) to any person pursuant to any stock
option, stock purchase or similar plan or arrangement for
the benefit of employees of the Corporation or its
subsidiaries in effect on the Initial Issuance Date or
thereafter adopted by the Board of Directors of the
Corporation; (b) pursuant to options, warrants and
conversion rights in existence on the Initial Issuance Date;
or (c) on conversion of the Class R Stock.
7. In the event of:
a) the occurrence of any event causing the
adjustment of the Fixed Term or any Inverse Fixed Term
pursuant to paragraphs F.1., F.2. or F.3. hereof; or
b) there shall be any capital reorganization or
reclassification of the capital stock of the
Corporation, including any subdivision or combination
of its outstanding shares of Class D Stock, or
consolidation or merger of the Corporation with, or
sale of all or substantially all of its assets to,
another corporation; or
c) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation; or
d) the occurrence of a Change of Control;
then, in connection with such event, the Corporation shall
give to the holders of the Class R Stock:
(1) in the case of a), b) or c) above, at least
twenty (20) days prior written notice of the date on
which the books of the Corporation shall close or a
record shall be taken for such dividend, distribution
or subscription rights or for determining rights to
vote in respect of any such reorganization,
reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, provided that
if the Class R Stock is Publicly Traded, such notice
must be given prior to the end of the Public Conversion
Period prior to such record date;
(2) in the case of any such reorganization,
reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, at least twenty
(20) days prior written notice of the date when the
same shall take place. Such notice in accordance with
the foregoing clause shall also specify, in the case of
any such dividend, distribution or subscription rights,
the date on which the holders of Class D Stock shall be
entitled thereto, and shall also specify the date on
which the holders of Class D Stock shall be entitled to
exchange their Class D Stock for securities or other
property deliverable upon such reorganization,
reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may
be; and
(3) in the case of d) above, five days after such
Change of Control, unless notice is required sooner by
(1) above; provided that if stockholder approval is
required to effect such Change of Control, notice shall
be provided concurrently with the notice to
stockholders in connection with obtaining such
stockholder approval.
Each such written notice shall be given by first class mail,
postage prepaid, addressed to the holders of the Class R
Stock at the address of each such holder as shown on the
books of the Corporation.
8. If any event occurs as to which, in the opinion of
the Board of Directors of the Corporation, the provisions of
this paragraph F. are not strictly applicable or if strictly
applicable would not fairly protect the rights of the
holders of the Class R Stock in accordance with the
essential intent and principles of such provisions, then the
Board of Directors shall make an adjustment in the
application of such provisions, in accordance with such
essential intent and principles, so as to protect such
rights as aforesaid. Upon the occurrence of any such
adjustment pursuant to this paragraph F.8., the Corporation
shall give notice to the holders of Class R Stock as
provided in paragraph F.7(1), F.7(2) or F.7(3) hereof, as
appropriate. All calculations and determinations required
to be made by the Corporation pursuant hereto shall be made
by the Corporation in good faith. All such calculations and
determinations shall be conclusive unless otherwise
specifically provided hereby.
G. Rank.
After the Class C Exchange, the Class R Stock shall,
with respect to dividend distributions and with respect to
distributions of assets and rights upon the liquidation,
winding up and dissolution of the Corporation, rank on a
parity with Class D Stock and junior to Preferred Stock.
H. Dividends.
1. Prior to the Class C Exchange, no dividends may be
declared or paid with respect to Class R Stock. After
(i) the Class C Exchange and (ii) dividends payable on any
Preferred Stock have been declared and set aside on any such
Preferred Stock having a preference over the Class D Stock
and Class R Stock with respect to the payment of such
dividends, holders of Class R Stock shall only be entitled
to receive dividends, out of any assets or funds legally
available therefor, in an amount per share of Class R Stock
(and proportionally to such amount for fractional shares
thereof) as set forth below:
a) If and when a Regular Dividend is declared,
an amount which is equal to (i) the Conversion Ratio
then in effect multiplied by (ii) the aggregate per
share amount of such Regular Dividend declared on a
share of Class D Stock; and
b) Subject to paragraph K. hereof, if and when
an Extraordinary Dividend is declared, an amount which
is equal to (i) the Conversion Ratio then in effect
multiplied by (ii) one-fourth of the sum of (A) the
aggregate per share amount of all cash portions of such
Extraordinary Dividend plus (B) the aggregate per share
amount (based upon the fair market value of the
non-cash portion of such Extraordinary Dividend at the
time such Extraordinary Dividend is declared or paid as
determined in good faith by the Board of Directors) of
all non-cash portions of such Extraordinary Dividend,
in each case as declared on a share of Class D Stock.
Such dividends shall be declared and paid
contemporaneously with the declaration and payment of the
related dividend on the Class D Stock; and the foregoing are
the only times when dividends shall be declared and paid
with respect to the Class R Stock.
2. All dividends paid with respect to shares of Class R
Stock pursuant to this paragraph H. shall be paid pro rata
and in like manner to all of the holders entitled thereto.
3. No Regular or Extraordinary Dividends shall be
declared by the Board of Directors or paid or set apart for
payment by the Corporation on Class D Stock unless,
contemporaneously therewith, a like ratable dividend
calculated in accordance with this paragraph H. is declared
and paid, or declared and a sum set apart sufficient for
such payment, on the Class R Stock, payable as set forth
herein.
I. Liquidation Rights.
1. Prior to the Class C Exchange, in the event of any
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation ("Liquidation"), the holders of
Class R Stock then outstanding shall not be entitled to
receive any property, assets or funds of the Corporation.
2. In the event of a Liquidation following the Class C
Exchange, holders of Class R Stock then outstanding shall be
entitled to be paid ratably out of the assets and funds of
the Corporation legally available for distribution to its
stockholders, after and subject to the payment in full of
all amounts required to be distributed to the holders of any
Preferred Stock upon such Liquidation, an amount equal to
(a) the Liquidation Ratio then in effect multiplied by
(b) the aggregate amount of all assets and funds remaining
available for distribution to holders of Class D Stock and
Class R Stock.
J. Voting.
1. Prior to the Class C Exchange, except as required by
law, holders of Class R Stock shall not be entitled to vote
on any matter.
2. After the Class C Exchange, each issued and
outstanding share of Class R Stock (and fraction thereof)
shall be entitled to vote only (i) for the election of
directors, and (ii) as required by law. On matters on which
the holders of Class R Stock are entitled to vote, (a) each
issued and outstanding share of Class R Stock shall be
entitled to the number of votes equal to the Conversion
Ratio as of the record date for determination of
stockholders entitled to vote on such matter, and (b) each
issued and outstanding fraction of a share of Class R Stock
shall be entitled to (x) such fraction, multiplied by (y)
the number of votes equal to the Conversion Ratio as of the
record date for determination of stockholders entitled to
vote on such matter. Except as required by law, holders of
Class R Stock shall vote together with the holders of
Class D Stock as a single class on all matters on which
holders of Class R Stock are entitled to vote.
K. Forced Conversion.
1. In the event that the Board of Directors determines
that the Corporation should convert all issued and
outstanding shares of Class R Stock (and fractions thereof)
into Class D Stock, the Corporation may at its option, elect
to cause all, but not less than all, shares of Class R Stock
(and fractions thereof) to be converted (a "Forced
Conversion") into Class D Stock at the Conversion Ratio (i)
in the event that the Class D Stock is not Publicly Traded,
set forth in the Private Conversion Ratio Certificate
delivered pursuant to paragraph E.3. hereof as a result of
such determination by the Board of Directors, and (ii) in
the event that the Class D Stock is Publicly Traded, in
effect on the date the Board of Directors determines to
cause such a conversion; provided, however, that if such
Conversion Ratio in effect was calculated using a Conversion
Value of less than $25.00, such Conversion Ratio shall be
recalculated using a Conversion Value of $25.00.
2. All holders of record of shares of Class R Stock (or
fractions thereof) will be given at least ten (10) days
prior written notice of the date fixed and the place
designated for such conversion of Class R Stock pursuant to
this paragraph K. Such notice shall be sent by mail, first
class, postage prepaid, to each record holder of shares of
Class R Stock (or fractions thereof) at such holder's
address appearing on the stock register. On or before the
date fixed for conversion each holder of shares of Class R
Stock (or fractions thereof) shall surrender his or its
certificate or certificates for all such shares to the
Corporation at the place designated in such notice, and
shall thereafter receive certificates for the number of
shares of Class D Stock and cash in lieu of any fractional
share of Class D Stock to which such holder is entitled
pursuant to this paragraph K. On the date fixed for
conversion, all rights with respect to the Class R Stock so
converted will terminate, except only the rights of the
holders thereof, upon surrender of their certificate or
certificates therefor, to receive certificates for the
number of shares of Class D Stock into which such Class R
Stock has been converted, cash as provided in paragraph D.4.
hereof in respect of any fraction of a share of Class D
Stock otherwise issuable upon such conversion and payment of
any accrued and unpaid dividends thereon. If so required by
the Corporation, certificates surrendered for conversion
shall be endorsed or accompanied by written instrument or
instruments of transfer, in form satisfactory to the
Corporation, duly executed by the registered holder or by
his attorneys duly authorized in writing. All certificates
evidencing shares of Class R Stock (or fractions thereof)
which are required to be surrendered for conversion in
accordance with the provisions hereof shall, from and after
the date fixed for conversion, be deemed to have been
retired and canceled and the shares of Class R Stock (or
fractions thereof) represented thereby converted into
Class D Stock for all purposes, notwithstanding the failure
of the holder or holders thereof to surrender such
certificates on or prior to such date. As soon as
practicable after the date of such conversion and the
surrender of the certificate or certificates for Class R
Stock as aforesaid, the Corporation shall cause to be issued
and delivered to such holder, or on such holder's written
order, a certificate or certificates for the number of full
shares of Class D Stock issuable on such conversion in
accordance with the provisions hereof, cash as provided in
paragraph D.4. hereof in respect of any fraction of a share
of Class D Stock otherwise issuable upon such conversion and
payment of any accrued and unpaid dividends thereon.
L. Mandatory Conversion.
1. Each share of Class R Stock (and fraction thereof)
outstanding as of the Mandatory Conversion Date shall,
automatically, and without further action by or on behalf of
the Corporation, the Corporation's transfer agent or the
holder of such share of Class R Stock, be converted (the
"Mandatory Conversion") into shares of Class D Stock (and
cash in lieu of any fractions of shares of Class D Stock as
provided in paragraph D.4. hereof) at the Conversion Ratio
in effect as of such Mandatory Conversion Date.
2. All holders of record of shares of Class R Stock (or
fractions thereof) will be given written notice at least ten
(10) days prior to the Mandatory Conversion Date stating the
place designated for mandatory conversion of all of such
shares of Class R Stock pursuant to this paragraph L. Such
notice shall be sent by mail, first class, postage prepaid,
to each record holder of shares of Class R Stock (or
fractions thereof) at such holder's address appearing on the
stock register. On or before the Mandatory Conversion Date,
each holder of Class R Stock shall surrender his or its
certificate or certificates for all such shares (or
fractions thereof) to the Corporation at the place
designated in such notice, and shall thereafter receive
certificates for the number of shares of Class D Stock and
cash in lieu of any fractional shares of Class D Stock to
which such holder is entitled pursuant to this paragraph L.
On the date fixed for conversion, all rights with respect to
the Class R Stock so converted will terminate, except only
the rights of the holders thereof, upon surrender of their
certificate or certificates therefor, to receive
certificates for the number of shares of Class D Stock into
which such Class R Stock has been converted, cash as
provided in paragraph D.4. hereof in respect of any fraction
of a share of Class D Stock otherwise issuable upon such
conversion and payment of any accrued and unpaid dividends
thereon. If so required by the Corporation, certificates
surrendered for conversion shall be endorsed or accompanied
by written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the
registered holder or by his attorneys duly authorized in
writing. All certificates evidencing shares of Class R Stock
(or fractions thereof) which are required to be surrendered
for conversion in accordance with the provisions hereof
shall, from and after the date fixed for conversion, be
deemed to have been retired and canceled and the shares of
Class R Stock (and fractions thereof) represented thereby
converted into Class D Stock for all purposes,
notwithstanding the failure of the holder or holders thereof
to surrender such certificates on or prior to such date. As
soon as practicable after the date of such Mandatory
Conversion and the surrender of the certificate or
certificates for Class R Stock as aforesaid, the Corporation
shall cause to be issued and delivered to such holder, or on
such holder's written order, a certificate or certificates
for the number of full shares of Class D Stock issuable on
such conversion in accordance with the provisions hereof,
cash as provided in paragraph D.4. hereof in respect of any
fraction of a share of Class D Stock otherwise issuable upon
such conversion and payment of any accrued and unpaid
dividends thereon.
M. Mandatory Redemption. If the Class C Exchange (i) is
abandoned by the Board of Directors prior to the Class C
Exchange, or (ii) has not occurred by the close of business on
the Mandatory Redemption Date, the Corporation shall redeem (to
the extent funds are legally available therefor), all shares of
Class R Stock (and fractions thereof) then outstanding for a per
share price equal to the par value thereof) (such amount is
hereinafter referred to as the "Redemption Price"). Such
Redemption Price shall be paid to each record holder of Class R
Stock as of the Mandatory Redemption Date, promptly after such
date, by certified or bank cashier's check, sent by mail, first
class, postage prepaid, to each record holder of shares of
Class R Stock at such holder's address appearing on the stock
register. If the Corporation is unable at such date to redeem all
shares of Class R Stock (and fractions thereof) because funds are
not legally available therefor, then the Corporation shall redeem
such shares as soon thereafter as funds are legally available for
redemption of such shares.
N. Taxes. The Corporation shall pay all documentary stamp
taxes attributable to the initial issuance of Class R Stock and
of the shares of Class D Stock issuable upon conversion of Class
R Stock; provided that the Corporation shall not be required to
pay any tax or taxes which may be payable in respect of any
transfer involved in the issue of any certificates representing
shares of Class R Stock (or fractions thereof) or Class D Stock
in a name other than the holder of the certificate or
certificates surrendered upon conversion of Class R Stock, and
the Corporation shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Corporation the amount of
such tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
In witness whereof, Peter Kiewit Sons', Inc. has caused this
Certificate of Amendment to be signed by Matthew J. Johnson, its
Vice President, this 8th day of December, 1997.
PETER KIEWIT SONS', INC.
By: /s/ Matthew J. Johnson
Name: Matthew J. Johnson
Title: Vice President
