-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Utvuhm1jiUdaSkAXiT8ZrquNf2P/3J+v8t0RodF9/3YI5V3J9ky9aqKvcGlKDrKS WNu0vOcgtfowDnVfuijaKA== 0000794323-97-000014.txt : 19970927 0000794323-97-000014.hdr.sgml : 19970927 ACCESSION NUMBER: 0000794323-97-000014 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970919 EFFECTIVENESS DATE: 19970919 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: KIEWIT PETER SONS INC CENTRAL INDEX KEY: 0000794323 STANDARD INDUSTRIAL CLASSIFICATION: HEAVY CONSTRUCTION OTHER THAN BUILDING CONST - CONTRACTORS [1600] IRS NUMBER: 470210602 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-35929 FILM NUMBER: 97682648 BUSINESS ADDRESS: STREET 1: 1000 KIEWIT PLZ STREET 2: 14TH FLOOR CITY: OMAHA STATE: NE ZIP: 68131 BUSINESS PHONE: 4023422052 MAIL ADDRESS: STREET 1: 1000 KIEWIT PLAZA STREET 2: 14TH FL CITY: OMAHA STATE: NE ZIP: 68131 S-8 1 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. EMPLOYEE OWNERSHIP PLAN (Full title of the plan) Kenneth D. Gaskins, Esq. Peter Kiewit Sons', Inc. 1000 Kiewit Plaza Omaha, Nebraska 68131 (402) 342-2052 (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 Registered Share Price Fee ____________________________________________________________________________ Class C Construction 300,000 $40.00 $12,000,000 $3,636 & Mining Group shares Restricted Redeemable Convertible Exchangeable Common Stock, par value $.0625 per share Class D Diversified 100,000 $54.25 $5,425,000 $1,644 Group Convertible shares Exchangeable Common Stock, par value $.0625 per share Total $5,280 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) All other reports filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 since December 28, 1996. (c) Descriptions of the Company's Class C Construction & Mining Group Restricted Redeemable Convertible Exchangeable Common Stock ("Class C Stock") and Class D Diversified Group Convertible Exchangeable Common Stock ("Class D Stock") contained in the Company's Registration Statement on Amendment No. 3 to Form S-4 filed August 7, 1995 (SEC File No. 33- 60977). 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, shall 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 Class C Stock The description of this class of securities is incorporated by reference. See Item 3(c) above. On November 1 in each of 1993, 1994, 1995, and 1996, the Company issued Class Debentures, convertible five years after issue date into a specific number of shares of Class C Stock based on the formula price of the Class C Stock on the date of issue. In 1997, the Company intends to redeem all debentures issued in the 1993, 1994, 1995, and 1996 Series, mandatorily converting the debentures into the previously specified number of shares of Class C Stock. The 300,000 shares of Class C Stock are being registered for such conversion purposes. Class D Stock The description of this class of securities is incorporated by reference. See Item 3(c) above. 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 Kenneth D. Gaskins. Mr. Gaskins, Corporate Counsel, is an employee of the Company. Mr. Gaskins owns shares of the Company's Class D Stock, and will be offered the opportunity to purchase securities in this offering. 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 the Delaware General Corporation 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 does maintain such insurance. Item 7. Exemption from Registration Claimed No restricted securities are to be reoffered or resold pursuant to this registration statement. 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 Certificate of Incorporation (Exhibit 3.1 to the Company's Annual Report on Form 10-K for 1991). 4.2 By-laws (Exhibit 3.4 to the Company's Annual Report on Form 10-K for 1992). 4.3 Indenture dated as of July 1, 1986 between the Company and the predecessor of First Bank National Association Omaha as Trustee (Exhibit 4.2 to Amendment No. 1 to the Company's Form S-1 Registration Statement filed August 11, 1986). 4.4 Form of Stock Repurchase Agreement for Employee Stockholders (Exhibit 2.1 to the Company's Registration Statement on Form 8-A filed February 20, 1992). 4.5 Form of Agreement with respect to Convertible Debentures of Peter Kiewit Sons', Inc. (Exhibit 4.6 to Amendment No. 1 to the Company's Form S-1 Registration Statement filed August 11, 1986). 5 Opinion of Kenneth D. Gaskins, 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). 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 this registration statement 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. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered, 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) The undersigned registrant hereby undertakes to deliver, or cause to be delivered with the prospectus to each employee to whom the prospectus is sent or given a copy of the registrant's annual report to stockholders for its last fiscal year, unless such employee otherwise has received a copy of such report, in which case the registrant shall state in the prospectus that it will promptly furnish, without charge, a copy of such report on written request of the employee. If the last fiscal year of the registrant has ended within 120 days prior to the use of the prospectus, the annual report of the registrant for the preceding fiscal year may be so delivered, but within such 120 day period the annual report for the last fiscal year will be furnished to each such employee. (e) The undersigned registrant hereby undertakes to transmit or cause to be transmitted to all employees participating in the plan who do not otherwise receive such material as stockholders of the registrant, at the time and in the manner such material is sent to its stockholders, copies of all reports, proxy statements and other communications distributed to its stockholders generally. (f) 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 final adjudication of issue. 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 18th of September, 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 18th day of September, 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) /s/ Richard W. Colf /s/ 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 /s/ Robert B. Daugherty /s/ Tait P. Johnson Robert B. Daugherty, Director Tait P. Johnson, Director /s/ Richard Geary /s/ Peter Kiewit, Jr. Richard Geary, Director Peter Kiewit, Jr., Director /s/ Bruce E. Grewcock /s/ 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 5 Legal opinion of Kenneth D. Gaskins, Esq. 23.1 Consent of Coopers & Lybrand L.L.P. EX-5 2 EXHIBIT 5 September 17, 1997 Peter Kiewit Sons', Inc. 1000 Kiewit Plaza Omaha, Nebraska 68131 Re: Form S-8 Registration Statement Gentlemen: Reference is made to the Registration Statement on Form S-8 of Peter Kiewit Sons', Inc. (the "Company"), to be filed with the Securities and Exchange Commission on or about September 18, 1997 (the "Registration Statement"). The Registration Statement will register 300,000 shares of Class C Construction & Mining Group Restricted Redeemable Convertible Exchangeable Common Stock and 100,000 shares of Class D Diversified Group Convertible Exchangeable Common Stock. As counsel to the Company, I am familiar with the contents of the Registration Statement, the terms and conditions of the securities to be registered thereunder. Based on the foregoing, it is my opinion that the shares of Class C Construction & Mining Group Restricted Redeemable Convertible Exchangeable Common Stock and Class D Diversified Group Convertible Exchangeable Common Stock, when sold pursuant to the offering contemplated by the Registration Statement, will be legally issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. Yours very truly, /s/ Kenneth D. Gaskins KDG/lsv Kenneth D. Gaskins Corporate Counsel EX-23 3 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the 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. /s/ Coopers & Lybrand Coopers & Lybrand L.L.P. Omaha, Nebraska September 18, 1997 -----END PRIVACY-ENHANCED MESSAGE-----