FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PETER KIEWIT SONS', INC.
(Exact name of registrant as specified in its charter)
Delaware 47-0210602
(State of incorporation) (I.R.S. Employer
Identification No.)
1000 Kiewit Plaza
Omaha, Nebraska 68131
(Address of principal (Zip code)
executive offices)
PETER KIEWIT SONS', INC.
1995 CLASS D STOCK PLAN
(Full title of the plan)
Matthew J. Johnson, Esq.
Peter Kiewit Sons', Inc.
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3613
(Name, address and telephone number
of agent for service)
Calculation of Registration Fee
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered1 Share2 Price3 Fee
____________________________________________________________________________
Class D Diversified 600,000 $54.25 $32,550,000 $9,864
Group Convertible shares
Exchangeable
Common Stock, par value
$.0625 per share
- -----------------------
1 Represents the shares of Class D Stock issuable pursuant to the Peter
Kiewit Sons', Inc. 1995 Class D Stock Plan, as amended November 10, 1997
(the "Plan").
2 Calculated pursuant to Rule 457(h) under the Act.
3 Calculated pursuant to Rule 457(h) under the Act.
Calculation of Registration Fee
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered4 Share5 Price6 Fee
____________________________________________________________________________
Class D Diversified 175,000 $49.50 $8,662,500 $2,625
Group Convertible
Exchangeable
Common Stock; par value
$.0625 per share
Class D Diversified 783,329 $45.00 $35,249,805 $10,682
Group Convertible
Exchangeable
Common Stock; par value
$.0625 per share
Class D Diversified 225,000 $40.40 $9,090,000 $2,755
Group Convertible
Exchangeable
Common Stock; par value
$.0625 per share
- -----------------------
4 Represents the shares of Class D Stock issuable pursuant to the Peter
Kiewit Sons', Inc. 1995 Class D Stock Plan (the "Plan").
5 Calculated pursuant to Rule 457(h) under the Act.
6 Calculated pursuant to Rule 457(h) under the Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2.
The information furnished to participants is not required to be filed with this
registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed with the Securities and Exchange Commission by
the Company are incorporated by reference in this registration statement:
(a) The Company's annual report on Form 10-K for the fiscal year ended
December 28, 1996.
(b) The Company's quarterly reports in Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997 and September 30, 1997.
(c) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 28, 1996.
(d) The description of the Company's Class D Diversified Group Convertible
Exchangeable Common Stock ("Class D Stock") contained in the Company's
Registration Statement on Form S-4 filed November 10, 1997 (SEC File No. 333-
34627).
All documents filed hereafter by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, will be deemed to be incorporated by reference in this registration
statement and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The legality of the securities offered by this Prospectus have been passed upon
for the Company by Matthew J. Johnson, Vice President-Legal of the Company.
Mr. Johnson owns shares of the Company's Class D Stock, and will be granted
options to purchase Class D Stock pursuant to the Plan.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a corporation to
indemnify its officers and directors to the extent provided in that statute.
The Company's Certificate of Incorporation and By-laws contain provisions
intended to indemnify officers and directors against liability to the fullest
extent permitted by applicable law. The Delaware General Corporation Law
empowers the Company to maintain insurance on behalf of officers and
directors against liabilities incurred while acting in such capacities.
The Company maintains such insurance.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibits filed as a part of this Registration Statement are listed below.
Exhibits incorporated by reference are indicated in parentheses.
Exhibit
Number Description
4.1 Restated Certificate of Incorporation (Exhibit 3.1 to the
Company's Annual Report on Form 10-K for 1991).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation (Appendix E-I to the Proxy Statement/Joint
Prospectus included in the Company's Registration Statement on
Form S-4 (No. 333-34627)).
4.3 By-laws (Exhibit 3.4 to the Company's Annual Report on Form 10-K
for 1992).
4.4 Peter Kiewit Sons', Inc. 1995 Class D Stock Plan, as amended
November 10, 1997.
5 Opinion of Matthew J. Johnson, Esq., with respect to legality of
securities being registered.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney (set forth in signature page to this
Registration Statement).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act
of 1934; and, where interim financial information required to be presented
by Article 3 of Regulation S-X are not set forth
in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
(d) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
finaladjudication of issue.
POWER OF ATTORNEY
Each of the undersigned officers and directors of the Company hereby severally
constitutes and appoints Terrence J. Ferguson and Matthew J. Johnson, and
each of them, their true and lawful attorneys-in-fact for the undersigned,
in any and all capacities, each with full power of substitution, to sign any
and all amendments to this Registration Statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents
in connection therewith, with the Commission, granting unto said attorneys-
in-fact, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or any of them, may lawfully do or cause to be done by
virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Omaha, State of Nebraska on the 9th day of
December, 1997.
PETER KIEWIT SONS', INC.
By: /s/ Walter Scott, Jr.
Walter Scott, Jr.
President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on the 9th day of December, 1997.
/s/ Walter Scott, Jr. Chairman of the Board and President
Walter Scott, Jr. (principal executive officer)
/s/ Eric J. Mortensen Controller
Eric J. Mortensen (principal financial and accounting officer)
Richard W. Colf Charles M. Harper
Richard W. Colf, Director Charles M. Harper, Director
/s/ James Q. Crowe /s/ Richard R. Jaros
James Q. Crowe, Director Richard R. Jaros, Director
Robert B. Daugherty /s/ Tait P. Johnson
Robert B. Daugherty, Director Tait P. Johnson, Director
Richard Geary Peter Kiewit, Jr.
Richard Geary, Director Peter Kiewit, Jr., Director
/s/ Bruce E. Grewcock Allan K. Kirkwood
Bruce E. Grewcock, Director Allan K. Kirkwood, Director
/s/ William L. Grewcock /s/ Kenneth E. Stinson
William L. Grewcock, Director Kenneth E. Stinson, Director
/s/ George B. Toll, Jr.
George B. Toll, Jr., Director
PETER KIEWIT SONS', INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.4 Peter Kiewit Sons', Inc. 1995 Class D Stock Plan (as amended
November 10, 1997)
5 Legal opinion of Matthew J. Johnson, Esq.
23.1 Consent of Coopers & Lybrand L.L.P.
Exhibit 5
PETER KIEWIT SONS', INC.
1000 Kiewit Plaza
Omaha, Nebraska 68131
(402) 342-2052
Fax: (402) 536-3645
December 12, 1997
Peter Kiewit Sons', Inc.
1000 Kiewit Plaza
Omaha, Nebraska 68131
Gentlemen:
I have acted as counsel to Peter Kiewit Sons', Inc., a Delaware corporation
(the "Company"), in connection with the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the offer
and sale by the Company of up to 1,783,329 shares of its Class D Diversified
Group Convertible Exchangeable Common Stock, par value $.0625 per share
("Class D Stock"), pursuant to the 1995 Class D
Stock Plan of the Company (as amended November 10, 1997).
In reaching the conclusions set forth below, I have examined such
certificates of public officials and corporate documents and records and
have made such other investigations, as I have considered necessary. As to
various matters of fact, I have relied on responses to inquiries made of
officers and employees of the Company or its subsidiaries.
Based on the foregoing, I am of the opinion that the Class D Stock, when
issued, will be duly authorized, validly issued, fully paid and nonassessable.
I am admitted to practice solely in the State of Nebraska. The opinions set
forth above are limited to the General Corporation Law of the State of
Delaware, and I express no opinion with respect to the laws of any other
jurisdiction.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Matthew J. Johnson
Matthew J. Johnson
Vice President-Legal
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion and incorporation by reference in this
Registration Statement of Peter Kiewit Sons', Inc. on Form S-8 of our report
dated March 14, 1997, except for Note 20, as to which the date is
March 26, 1997, of our audits of the consolidated financial
statements and financial statement schedule of Peter Kiewit Sons',
Inc. as of December 28, 1996 and December 30, 1995, and for the
three years ended December 28, 1996, which report is included in
the Annual Report on Form 10-K of Peter Kiewit Sons', Inc.
Coopers & Lybrand L.L.P.
/s/ Coopers & Lybrand
Omaha, Nebraska
December 12, 1997
Exhibit 4.4
PETER KIEWIT SONS', INC.
1998 CLASS D STOCK PLAN
ARTICLE I
NAME AND PURPOSE
1.1 Name. The name of the Plan is the Peter Kiewit Sons', Inc., 1998
Class D Stock Plan.
1.2 Purpose. The purpose of the Plan is to increase the value of Class
D Stock and the profitability of the Company and the Diversified
Group (i) by enabling the Company and the Diversified Group to
attract, retain, motivate and reward employees, and (ii) by
aligning the interests of those employees with the interests of the
Company, the Diversified Group and the holders of Class D Stock.
ARTICLE II
DEFINITIONS
2.1 "Agreement" means any written agreement, document or instrument
that evidences a grant of a Benefit to a Participant and the terms,
conditions and provisions of, and restrictions upon, the Benefit.
2.2 "Benefit" means any benefit granted to a Participant under this
Plan.
2.3 "Board" means the Board of Directors of the Company.
2.4 "Certificate" means the certificate of incorporation of the
Company, as amended from time to time.
2.5 "Class D Conversion Price" has the meaning ascribed to it in the
Certificate.
2.6 "Class D Per Share Price" has the meaning ascribed to it in the
Certificate.
2.7 "Class D Stock" means the Class D Diversified Group Convertible
Exchangeable Common Stock, par value $0.0625, issued by the
Company.
2.8 "Code" means the Internal Revenue Code of 1986, as amended, and the
regulations promulgated under the Code.
2.9 "Committee" means the Board or a committee or committees of the
Board appointed by the Board to administer this Plan.
2.10 "Company" means Peter Kiewit Sons', Inc., a Delaware corporation.
2.11 "Diversified Group" means KDG and all other corporations,
partnerships, or other entities with respect to which KDG owns,
directly or indirectly, fifty percent or more of
the issued and outstanding capital stock or other equity interests
(measured in terms of total dollar value if the corporation,
partnership or other entity has outstanding more than one class of
capital stock or other equity interests).
2.12 "Effective Date" means January 1, 1998.
2.13 "Employee" means any person (a) who is employed on a full-time
basis by the Company and provides substantial services to the
Diversified Group or, (b) who is employed by any member of the
Diversified Group, in each case at the time of the grant of the
related Benefit.
2.14 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.15 "Fair Market Value" means, with respect to Class D Stock, (a) the
Class D Per Share Price, if the Class D Stock is not Publicly
Traded, and (b) if the Class D Stock is publicly traded, the Class
D Conversion Price or the fair market value of Class D Stock
determined by such other reasonable method of valuation adopted by
the Committee.
2.16 "Fiscal Year" means the taxable year of the Company for federal
income tax purposes, including the taxable year in which the Plan
is adopted.
2.17 "Incentive Stock Option" means any Option that is intended, at the
time it is granted, to be an incentive stock option within the
meaning of Section 422 of the Code.
2.18 "KDG" means Kiewit Diversified Group, Inc., a Delaware corporation.
2.19 "Nonqualified Stock Option" means any Option that is not an
Incentive Stock Option.
2.20 "Option" means any option to purchase Shares that is granted
pursuant to Section 6.1.
2.21 "Participant" means any Employee who is granted a Benefit pursuant
to this Plan.
2.22 "Plan" means the Peter Kiewit Sons', Inc. 1998 Class D Stock Plan,
as it may be amended from time to time.
2.23 "Publicly Traded" has the meaning ascribed to it in the
Certificate.
2.24 "Representative" means a member of the Committee acting on behalf
of the Committee, or an Employee appointed by the Committee to
exercise some or all of the authority of the Committee.
2.25 "Restricted Shares" means any Shares that are granted pursuant to
Section 7.1 subject to restrictions on transfer, to forfeiture
under certain circumstances and to such other restrictions as the
Committee deems appropriate (including restrictions on the exercise
of voting rights or the right to receive dividends, or a
requirement to reinvest dividends).
2.26 "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act,
as it may be amended from time to time, or any successor rule in
effect from time to time.
2.27 "Share" means a share of Class D Stock.
2.28 "Term" means the term of this Plan, as set forth in Section 11.2.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. Every Employee is eligible to become a Participant.
A person who is not an Employee is not eligible to become a
Participant.
3.2 Participation. The Committee will select Employees to participate
in the Plan from time to time, in its sole discretion. An Employee
cannot become a Participant unless the Employee is selected by the
Committee to participate in the Plan. In selecting Employees to
participate in the Plan, the Committee may consider the past,
present and expected future performance of the Employee, the effort
of the Employee, the length of service of the Employee, the level
of responsibility of the Employee and such other factors as the
Committee deems appropriate.
ARTICLE IV
BENEFITS
4.1 Types of Benefits. The Committee will determine the Benefits to be
granted to each Participant. The Committee may grant Benefits in
any one or any combination of (a) Incentive Stock Options; (b)
Nonqualified Stock Options; (c) Restricted Shares; (d) Convertible
Debentures; (e) bargain purchases of Shares; (f) bonuses of Class D
Stock; (g) the grant of Shares based on performance or the
satisfaction of other conditions; or (h) any other form of stock
benefit or stock-related benefit other than stock appreciation
rights.
4.2 Terms and Conditions of Benefits. The Committee will determine all
terms, conditions and provisions of, and restrictions upon, any
grant of Benefits. Without limiting the Committee's authority, the
Committee may: (a) make the grant of Benefits conditional upon an
election by a Participant to defer payment of a portion of his
salary; (b) give a Participant a combination of Benefits or a
choice between two Benefits; (c) award Benefits in the alternative
so that acceptance of or exercise of one Benefit cancels the right
of a Participant to another; (d) award Benefits subject to any
condition that the Committee deems appropriate; (e) provide that
grants of Benefits in Shares or Share equivalents will include
dividend or dividend equivalent payments or dividend credit rights;
and (f) provide any vesting schedule for Benefits as the Committee
deems appropriate. The Committee may waive any term, condition,
provision or restriction, in its sole discretion.
4.3 Agreements. Each grant of a Benefit to a Participant will be
evidenced by an Agreement executed by the Participant and a
Representative (on behalf of the Company and the Committee).
Subject to the terms and conditions of this Plan, the Committee, in
its sole and absolute discretion, will determine the form and
content of all Agreements. Agreements with respect to a specific
type of Benefit need not be identical.
4.4 Modification or Termination of Benefits. The Committee, in its
sole discretion, may modify, cancel or terminate any Benefit at any
time if a Participant is not in compliance with this Plan, the
related Agreement or any rules adopted by the Committee.
4.5 Optional Deferral. The Committee may defer the right to receive
any Benefit under the Plan, at the request of the Participant, for
such period and upon such terms as the Committee determines. Any
such deferral may involve crediting of interest on deferrals of
cash and crediting of dividends on deferrals denominated in Shares.
4.6 Code Section 162(m). The Committee, in its sole discretion, may
require that one or more Agreements provide that, in the event that
Section 162(m) of the Code or any similar provision would operate
to disallow a deduction by the Company for all or part of any
Benefit under the Plan, a Participant's receipt of the portion of
such Benefit that would not be deductible by the Company will be
deferred until the next succeeding year or years in which the
Participant's remuneration does not exceed the limit set forth in
Section 162(m) of the Code.
ARTICLE V
SHARES SUBJECT TO PLAN
5.1 Aggregate Limitation. The Committee may not grant Benefits under
this Plan with respect to more than ________ Shares during the
Term.
5.2 Annual Limitation. The Committee may not grant Benefits under this
Plan with respect to more than ________ Shares during any two-
Fiscal Year period.
5.3 Individual Limitations. The Committee may not grant Benefits under
this Plan to any Participant with respect to more than ________
Shares during the Term.
5.4 Unused Shares. If any Benefit expires or terminates, or if any
Benefit is surrendered, cancelled or forfeited without having been
fully exercised, the Committee may again grant Benefits with
respect to the unused Shares allocable to the expired, terminated,
surrendered, cancelled or forfeited Benefit.
5.5 Adjustments. The Committee will adjust the Share limitations set
forth in Section 5.1, 5.2 and 5.3 to reflect any and all
adjustments in numbers of Shares pursuant to Article IX.
ARTICLE VI
OPTIONS
6.1 Grant. The Committee may grant Options to any Participant. The
Committee will determine the terms, conditions and provisions of,
and the restrictions on, any Options, including the number of
shares subject to such Options, the date or dates on which the
Options become exercisable, either wholly or in part, and the
expiration date of the Options. A Participant to whom an Option is
granted will not be deemed the holder of any Shares subject to the
Option until the Shares are fully paid, and issued and delivered to
him following exercise of the Option.
6.2 Incentive Stock Options. Incentive Stock Options must include such
terms and conditions as determined by the Committee to be
reasonably necessary to cause the options to qualify as incentive
stock options under Section 422 of the Code.
6.3 Exchange. The Committee may grant Options to a Participant holding
unexercised outstanding Options, or unexercised outstanding Options
granted under another stock plan of the Company, on the condition
that the Participant surrenders for cancellation some or all of
those unexercised outstanding options.
6.4 Substitution. The Committee may grant Options from time to time in
substitution for similar rights held by employees of other entities
who become Employees as a result of a merger or consolidation of
the other corporation with a member of the Diversified Group, the
acquisition by a member of the Diversified Group of the assets of
the other corporation, or the acquisition by a member of the
Diversified Group of an equity interest in another entity.
[6.5 Fair Market Value. The Committee may not grant Options pursuant to
this Plan with an exercise price that is less than the Fair Market
Value, as of the date of the grant, of the Class D Stock subject to
the Option.]
6.6. Vesting. Options granted pursuant to this Plan will become
exercisable at a rate determined by the Committee.
ARTICLE VII
RESTRICTED SHARES
7.1 Grant. The Committee may grant Restricted Shares to any
Participant. The Committee may make grants of Restricted Shares at
such cost, or at no cost, as determined by the Committee in its
sole discretion.
7.2 Beneficial Ownership. Except as set forth in an Agreement relating
to Restricted Shares, each Participant who is awarded Restricted
Shares will have the entire beneficial ownership of, and all rights
and privileges of a stockholder with respect to, the Restricted
Shares awarded to him.
ARTICLE VIII
OTHER AWARDS
8.1 Grants. The Committee may grant any other stock or stock-related
awards to a Participant under this Plan that the Committee deems
appropriate, including, but not limited to, bargain purchases of
Class D Stock, bonuses of Class D Stock and the grant of Shares
based on performance or upon the satisfaction of other conditions.
ARTICLE IX
ADJUSTMENTS
9.1 Increase or Decrease. If the outstanding shares of Class D Stock
are increased or decreased, or are changed into or exchanged for a
different number or kind of shares or securities or other forms of
property or rights, as a result of one or more reorganizations,
recapitalizations, stock splits, reverse stock splits, stock
dividends or the like, the Committee will make appropriate
adjustments in the price, number and/or kind of Shares, of
securities other forms of property or rights for which Benefits may
be granted under this Plan and for which outstanding Benefits may
be exercised.
9.2 Other Property. In connection with any reorganization,
recapitalization, spin-off or other transaction in which the
outstanding shares of Class D Stock are changed into or exchanged
for property, rights or securities other than, or in addition to,
Class D Stock, the Committee will adjust outstanding Benefits so
that the Benefits will become exercisable for either one or a
combination of (a) the property, rights and/or securities
receivable in that transaction, or (b) stock of the Company or of a
successor employer corporation, or a parent or subsidiary thereof,
so that such adjustment may preserve, in the judgment of the
Committee, the value of the Benefits to the Participants.
9.3 Merger. If the Company shall become a party to any corporate
merger, liquidation or agreement for the sale of substantially all
of its assets and property, the Committee will make appropriate
arrangements, which will be binding upon the holders of unexpired
Benefits, for the substitution of new Benefits for any unexpired
Benefits then outstanding under this Plan, or for the assumption of
any such unexpired Benefits, to the end that the Participant's
proportionate interest shall be maintained as before the occurrence
of such event.
9.4 Other Adjustments. The Committee may, but will have no obligation
to, provide for or make other adjustments to the price, number
and/or kind of shares subject to any Benefit upon the occurrence of
other extraordinary events or transactions affecting the Company or
the Class D Stock to the extent deemed appropriate by the
Committee, in its sole discretion, so that such adjustment may
preserve, in the judgment of the Committee, the value of the
Benefits to the Participants.
ARTICLE X
ADMINISTRATION
10.1 Administration. The Committee will administer this Plan. The
Board may appoint a separate committee or committees to administer
portions of the Plan applicable to persons subject to Rule 16b-3,
Section 162(m) of the Code or other similar provisions of law. The
Committee may act either through majority vote of the Committee at
a meeting for which a quorum is present, or through the written
consent of a majority of the members of the Committee in lieu of a
meeting. The Committee will maintain such books, accounts and
records relating to the Plan and to Committee proceedings as it
considers appropriate. The Committee may designate Employees to
assist the Committee in the administration of the Plan and to act
as Representatives of the Committee, and in that capacity to
exercise any or all of the authority of the Committee under this
Plan, and may grant authority to those Employees to execute any and
all agreements contemplated by this Plan and any other documents
reasonably required to implement this Plan. The Committee may
employ agents, attorneys, accountants or other third parties for
such purposes as the Committee considers appropriate.
10.2 Discretion and Authority. Subject to the express limitations set
forth in this Plan, the Committee, in its sole and absolute
discretion, may take any and all actions necessary, advisable or
appropriate to implement the Plan and may make any and all
determinations deemed appropriate for the administration of the
Plan, including actions and determinations with respect to (a) the
Participants in the Plan, (b) adequacy of consideration received by
the Company in exchange for Benefits granted under the Plan, (c)
the types and amounts of Benefits to be granted to Participants or
to any particular Participant, (d) the terms, conditions and
provisions of, and restrictions on, all Benefits, (e) amounts
payable, if any, by a Participant in connection with the grant,
award or receipt of any Benefit, (f) restrictions on transfer of
any Benefit by a Participant, and (g) the circumstances under which
any Benefit may expire, terminate or be surrendered, cancelled or
forfeited.
10.3 Payment. Upon the exercise of an Option or in the case of any
other Benefit that requires a payment by a Participant to the
Company, the amount due the Company may be paid (a) in cash; (b)
by the surrender of all or part of a Benefit (including the Benefit
being exercised); (c) by the tender to the Company of Shares owned
by the Participant and registered in his or her name having a Fair
Market Value equal to the amount due to the Company; (d) in other
property, rights and credits deemed acceptable by the Committee,
including the Participant's promissory note; or (e) by any
combination of the payment methods specified in (a) through (d).
Notwithstanding the foregoing, any method of payment other than in
cash may be used only with the consent of the Committee or if and
to the extent so provided in the related Agreement. The proceeds
of the sales of Shares purchased pursuant to an Option and any
payment to the Company for other Benefits will be added to the
general funds of the Company or to the reacquired Shares held by
the Company, as the case may be, and used for the corporate
purposes of the Company as the Board determines.
10.4 Rules. The Committee may make, amend and rescind such rules and
regulations and establish, modify or repeal such procedures as it
deems appropriate for the administration of the Plan. The
Committee may make special rules or regulations that apply only to
persons covered by Rule 16b-3, Section 162(m) of the Code or other
provisions of law.
10.5 Interpretation. In the event of a disagreement as to the
interpretation of the Plan, any rule, regulation or procedure under
the Plan, or as to any right or obligation arising from or related
to the Plan, the interpretation of the Committee will be final and
binding.
10.6 Legal Requirements. The Committee will cause the Plan, and any
grants or awards of Benefits, to comply with all applicable laws.
ARTICLE XI
AMENDMENT AND TERMINATION
11.1 Amendment. The Committee may amend the Plan from time to time as
it deems appropriate. The Committee, however, may not amend any
provision of Article V, Section 6.2 or this Article XI without the
approval of the Board. No amendment to this Plan may deprive a
Participant of any Benefit or rights with respect to a Benefit
without the Participant's consent.
11.2 Term. The Plan will terminate on the tenth anniversary of the
Effective Date. The Board, however, may terminate the Plan at any
time. Neither amendment nor termination of the Plan will deprive
Participants of their rights with respect to outstanding Benefits.
ARTICLE XII
MISCELLANEOUS
12.1 Continuation of Employment. Neither this Plan nor any Benefit
granted under this Plan confers upon any Employee any right to
continue in the employment of the Company or any member of the
Diversified Group or limits the right of the Company to terminate
an Employee's employment at will at any time.
12.2 Termination of Employee. If the employment of a Participant by the
Employer terminates for any reason, all unexercised, deferred, and
unpaid Benefits may be exercisable or paid only in accordance with
rules established by the Committee. These rules may provide, as
the Committee in its sole discretion may deem appropriate, for the
expiration, forfeiture or continuation of, or the acceleration of
vesting of, all or part of the Benefits.
12.3 Unfunded Plan. This Plan is intended to constitute an "unfunded"
plan for incentive and deferred compensation. With respect to any
payments or deliveries of Shares not yet made to a Participant by
the Company, nothing contained in this Plan will give any
Participant rights that are greater than those of a general
creditor of the Company. The Committee may authorize the creation
of trusts or other arrangements to meet the obligations to deliver
Shares or payments under the Plan.
12.4 Designation of Beneficiary. A Participant may file with the
Committee a written designation of a beneficiary or beneficiaries
(subject to such limitations as to the classes and numbers of
beneficiaries and contingent beneficiaries as the Committee may
from time to time prescribe) to exercise, in the event of the death
of the Participant, an Option, or to receive, in such event, any
Benefits. The Committee reserves the right to review and approve
beneficiary designations. A Participant may from time to time
revoke or change any such designation of beneficiary and any
designation of beneficiary under the Plan will be controlling over
any other disposition, testimony or otherwise; provided, however,
that if the Committee will be in doubt as to the right of any such
beneficiary to exercise any Option or to receive any Benefit, the
Committee may determine to recognize only an exercise by the legal
representative of the recipient.
12.5 Nontransferability. Unless otherwise determined by the Committee
or specified in an Agreement, (a) no Benefit granted under this
Plan may be transferred or assigned by the Participant to whom it
is granted other than by beneficiary designation, will, pursuant to
the laws of descent and distribution, or pursuant to a qualified
domestic relations order, and (b) a Benefit granted under this Plan
may be exercised, during the Participant's lifetime, only by the
Participant or by the Participant's guardian or legal
representative.
12.6 Rule 16b-3. With respect to Participants subject to Section 16 of
the Exchange Act, transactions under this Plan are intended to
comply with all applicable provisions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of
the Plan or action by the Committee or a Representative fails to so
comply, it will be deemed null and void, to the extent permitted by
law and deemed advisable by the Committee.
12.7 No Effect on Other Benefits. The receipt of Benefits under the
Plan shall have no effect on any benefits to which a Participant
may be entitled from the Employer, under another plan or otherwise,
or preclude a Participant from receiving any such benefits.
12.8 Withholding. If the Company is required to withhold any taxes in
connection with a Benefit, and a Participant is obligated to pay to
the Company any or all of the amount required to be withheld, the
Committee may permit the Participant to satisfy the withholding
obligation, in whole or in part, either (a) by having the Company
withhold from any Class D Stock to be issued upon the receipt of a
Benefit Class D Stock with a Fair Market Value sufficient to
satisfy the withholding amount due, or (b) by delivering to the
Company sufficient Class D Stock to satisfy the withholding amount
due.
12.9 Effective Date. This Plan is adopted by the Board and is effective
as of January 1, 1998.
12.10 Liability. No member of the Board or the Committee, or any
officer or employee of the Company or its Subsidiaries, will be
personally liable for any action, omission or determination made in
good faith or upon the advice of counsel in connection with the
Plan or any Benefit granted or awarded under the Plan.
12.11 Governing Law. The law of the state of Delaware will govern
issues related to the validity and insurance of Shares. All other
terms, conditions and provisions of, and restrictions upon, this
Plan will be construed and administered in accordance with the law
of the state of Nebraska.
12.12 Conflict. If a term, condition or provision of, or
restriction upon, the Plan conflicts with the term, condition or
provision of, or restriction upon, any Agreement, the term of the
Plan will control.
