-----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, Vdzdy2z/W1OHvuFipVW2A/sb+x2K032DBl8vpwBSF4Nv49Vg/buyAksmGByD+5dw 1hggvP7gHEhtKL/luTEQyg== 0000794323-05-000217.txt : 20050829 0000794323-05-000217.hdr.sgml : 20050829 20050829165008 ACCESSION NUMBER: 0000794323-05-000217 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20050823 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050829 DATE AS OF CHANGE: 20050829 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LEVEL 3 COMMUNICATIONS INC CENTRAL INDEX KEY: 0000794323 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 470210602 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-15658 FILM NUMBER: 051056002 BUSINESS ADDRESS: STREET 1: 1025 ELDORADO BOULEVARD STREET 2: BLDG 2000 CITY: BROOMFIELD STATE: CO ZIP: 80021 BUSINESS PHONE: 7208881000 MAIL ADDRESS: STREET 1: 1025 ELDORADO BOULEVARD STREET 2: BLDG 2000 CITY: BROOMFIELD STATE: CO ZIP: 80021 FORMER COMPANY: FORMER CONFORMED NAME: KIEWIT PETER SONS INC DATE OF NAME CHANGE: 19920703 8-K 1 f8k_08232005.txt CURRENT REPORT ON FORM 8-K 08/23/2005 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): August 23, 2005 Level 3 Communications, Inc. (Exact name of Registrant as specified in its charter) Delaware 47-0210602 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1025 Eldorado Blvd., Broomfield, Colorado 80021 (Address of principal executive offices) (Zip code) 720-888-1000 (Registrant's telephone number including area code) Not applicable (Former name and former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 8.01. Other Events On November 19, 2002, Gary Haegele (the "Plaintiff") commenced a stockholder's derivative suit on behalf of Level 3 Communications, Inc. (the "Company") in the District Court of Colorado for the City and County of Broomfield entitled Haegele v. Scott, et al., (Index No. 02-CV-0196) (the "Complaint"). The action was brought against the Company as a nominal defendant and against the directors of the Company, certain former directors of the Company and Peter Kiewit Sons', Inc. ("PKS," and together with the Company and the individual defendants, the "Defendants"). The Complaint alleged that the director defendants, aided and abetted by PKS, breached their fiduciary duties to the Company in connection with several transactions between the Company and PKS including contracts under which PKS constructed the Company's fiber optic cable network and manages the Company's mine properties. The Complaint also alleged that in building the fiber optic cable network, the defendants caused the Company to violate the property rights of landowners, thereby subjecting the Company to substantial potential liability. In addition, the Complaint alleged that Company assets were transferred to its officers and directors in the form of personal loans, excessive salaries and the payment of personal expenses. The action sought both equitable and legal relief, including restitution, compensatory and punitive damages of an unspecified amount, imposition of a constructive trust, disgorgement and injunctive relief. The Defendants filed a motion to dismiss, which was denied by the Court in early October 2003. Subsequently, the Board of Directors of the Company appointed a Special Litigation Committee comprised of an independent director with the exclusive power to conduct or cause to be conducted an impartial and independent investigation of all matters alleged by the Plaintiff and to determine whether the litigation should be maintained, terminated, or otherwise disposed, in accordance with its findings as to whether the litigation is in the best interests of the Company and its stockholders. On August 2, 2004, the Special Litigation Committee delivered its report in which it concluded that it was not in the best interests of either the Company or its stockholders to pursue any of the claims the plaintiff asserted in the Complaint. The Company filed a motion to dismiss the Complaint based on the recommendation of the Special Litigation Committee. On May 2, 2005, the Company filed a further motion to dismiss for lack of subject matter jurisdiction and seeking the award of sanctions. In July 2005, the parties began to discuss the dismissal of the lawsuit in full with each side to the litigation to bear their own costs and expenses, including attorney's fees. No compensation in any form has or will pass directly or indirectly from the Company or any of the Defendants to the Plaintiff or Plaintiff's attorneys. On August 23, 2005, the Court entered an order dismissing the Complaint and thereby confirming the parties agreement that the Plaintiff dismisses his individual claims against the Defendants, with prejudice and that the Plaintiff dismisses the remainder of the Complaint against the Defendants without prejudice. The Company received notice of the entry of this order of dismissal on August 29, 2005. A copy of the Court's order is filed as part of Exhibit 99.1 to this Current Report and is incorporated herein by reference as if set forth in full. Item 9.01. Financial Statements and Exhibits (a) Financial Statements of business acquired None (b) Pro forma financial information None (c) Exhibits 99.1 Stiuplation of Settlement SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized. Level 3 Communications, Inc. August 29, 2005 By: /s/ Neil J. Eckstein Date Neil J. Eckstein, Senior Vice President 3 EX-99 2 f8k991_08192005.txt EXHIBIT 99.1 STIPULATION OF DISMISSAL Exhibit 99.1 DISTRICT COURT, CITY AND COUNTY OF BROOMFIELD, COLORADO 17 DesCombes Drive Broomfield, CO 80020 COURT USE ONLY Plaintiff: GARY HAEGELE, Derivatively on Behalf of LEVEL 3 COMMUNICATIONS, INC. Defendants: WALTER SCOTT, JR., et al. Nominal Defendant: LEVEL 3 COMMUNICATIONS, INC. Andrew J. Petrie (#11416) Case Number: 2002CV196 Dart M. Winkler (#33916) Petrie Schwartz llp Division: A 1775 Sherman Street, Suite 2500 Denver, CO 80203 Courtroom: 2 303.226.7700 (phone) 303.226.7777 (fax) Email: apetrie@petrieschwartz.com STIPULATION OF SETTLEMENT WHEREAS, on November 19, 2002, Plaintiff Gary Haegele commenced this stockholder's derivative action on behalf of Level 3 Communications, Inc., against the Defendants (the "Litigation"); and WHEREAS, the Defendants have denied all of the material allegations of the Plaintiff's Complaint, and have pending both a motion to dismiss for lack of standing and a motion to dismiss based on the report of Level 3's special litigation committee finding that the continuation of this action is not in the best interests of the company or its stockholders; and -1- WHEREAS, the parties to this action have resolved all of the issues before this Court on a mutually agreeable basis. IT IS HEREBY STIPULATED AND AGREED by and among Plaintiff and the Defendants, that, subject to the Court's approval, the Litigation shall be finally and fully compromised and settled, and the Litigation shall be dismissed, as to all parties, upon and subject to the terms and conditions of this Stipulation. I. DEFINITIONS As used in this Stipulation, and in the Stipulation of Dismissal attached as Exhibit "A," the following terms have the meanings specified below: 1. "Defendants" means Walter Scott, Jr., James Q. Crowe, R. Douglas Bradbury, Charles C. Miller, III, Kevin J. O'Hara, Mogens C. Bay, William L. Grewcock, Richard R. Jaros, Robert E. Julian, David C. McCourt, Kenneth E. Stinson, Michael B. Yanney, Colin V.K. Williams and Peter Kiewit Sons', Inc., and nominal defendant Level 3 Communications, Inc. 2. "Plaintiff" means Gary Haegele. 3. "Stipulation of Dismissal" means the Stipulation of Dismissal to be entered by the Court in the form attached hereto as Exhibit "A." II. STIPULATION OF DISMISSAL Plaintiff agrees he will execute, obtain the Defendants signatures and promptly file a Stipulation of Dismissal, dismissing the Litigation. The Stipulation of Dismissal shall be substantially in the form attached to this Stipulation as Exhibit A and shall: -2- (a) confirm the parties' agreement and the Court's July 15, 2005 ruling that Level 3 will have provided notice to all of its stockholders that is adequate and reasonable under the circumstances of this case by providing notice to all members of the public in either its Form 8-K or Form 10-Q disclosures to be filed with the SEC; (b) dismiss Plaintiff's individual claims against Defendants, with prejudice, with each party to bear his or its own attorneys' fees, costs and expenses; and (c) dismiss the remainder of the Litigation, without prejudice, with each party to bear his or its own attorneys' fees, costs and expenses. III. OTHER TERMS Each party agrees that he or it shall conclusively release the other parties (including any subset or committee of the parties, and specifically including the Special Litigation Committee of the Board of Directors of Level 3 Communications, Inc.), their respective counsel, and, where applicable, their subsidiaries and affiliates, from any and all claims the parties asserted or could have asserted in the Litigation or arising out of the Litigation. In the event the Court does not approve the Stipulation of Dismissal, the Court requires notice to Level 3's stockholders over and above the notice it approved on July 15, 2005 and as set forth in Section II(a), or the settlement set forth in this Stipulation is terminated or fails to become effective in accordance with its terms, the Plaintiff and the Defendants shall be restored to their respective positions in the -3- Litigation as of July 15, 2005. In that event, the terms and provisions of this Stipulation shall have no further force and effect with respect to the Parties; and any Stipulation of Dismissal entered by the Court in accordance with the terms of the Stipulation shall be treated as vacated, nunc pro tunc to July 15, 2004. IN WITNESS WHEREOF, the parties have each signed the Stipulation on the dates set forth next to their signatures below. DATED: August 8, 2005 /s/ Gary Haegele Gary Haegele DATED: August 10, 2005 LEVEL 3 COMMUNICATIONS, INC. /s/ Thomas C. Stortz By: Thomas C. Stortz Its: Executive Vice President DATED: August 18, 2005 PETER KIEWIT SONS', INC. /s/ Tobin A. Schropp By: Tobin A. Schropp Its: Senior Vice President -4- DATED: August 9, 2005 DYER & SHUMAN, LLP /s/ Kip B. Shuman Kip B. Shuman 801 East 17th Avenue Denver, CO 80218-1417 Phone: 303-861-3003 Fax: 303-830-6920 DATED: August 9, 2005 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP /s/ Andrew J. Brown Andrew J. Brown 401 B Street, Suite 1600 San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 DATED: August 9, 2005 OAKES & FOSHER, LLC /s/ Bruce D. Oakes Bruce D. Oakes 1401 S. Brentwood Blvd., Suite 560 St. Louis, MO 63144 Phone: 314-963-1760 Fax: 314-963-0765 Attorneys for Plaintiff Gary Haegele -5- DATED: August 10, 2005 PETRIE SCHWARTZ LLP /s/ Andrew J. Petrie Andrew J. Petrie 1775 Sherman Street, Suite 2500 Denver, CO 80203 Phone: 303-226-7700 Fax: 303-226-7777 Attorneys for Nominal Defendant Level 3 Communications, Inc. DATED: August 11, 2005 HOLLAND & HART LLP /s/ Holly Stein Sollod Holly Stein Sollod 555 Seventeenth Street, Suite 3200 Denver, CO 80202 Phone: 303-295-8000 Fax: 303-295-8261 - and - -6- DATED: August 15, 2005 WILLKIE FARR & GALLAGHER LLP /s/ Stephen W. Greiner Stephen W. Greiner 787 Seventh Avenue New York, NY 10019-6099 Phone: 212-728-8000 Fax: 212-728-8111 Attorneys for Individual Defendants Walter Scott, Jr., James Q. Crowe, R. Douglas Bradbury, Charles C. Miller, III, Kevin J. O'Hara, Mogens C. Bay, William L. Grewcock, Richard R. Jaros, Robert E. Julian, David C. McCourt, Kenneth E. Stinson, Michael B. Yanney, Colin V.K. Williams DATED: August 17, 2005 BALLARD SPAHR ANDREWS & INGERSOLL LLP /s/ Roger P. Thomasch Roger P. Thomasch 1225 Seventeenth Street, Suite 2300 Denver, CO 80202 Phone: 303-292-2400 Fax: 303-296-3956 - and - -7- DATED: August 15, 2005 WEIL GOTSHAL & MANGES LLP /s/ Irwin H. Warren Irwin H. Warren 767 Fifth Avenue New York, NY 10153-0119 Phone: 212-310-8000 Fax: 212-310-8007 Attorneys for Defendant Peter Kiewit Sons', Inc. -8- DISTRICT COURT, CITY AND COUNTY OF BROOMFIELD, COLORADO 17 DesCombes Drive Broomfield, CO 80020 COURT USE ONLY Plaintiff: GARY HAEGELE, Derivatively on Behalf of LEVEL 3 COMMUNICATIONS, INC. Defendants: WALTER SCOTT, JR., et al. Nominal Defendant: LEVEL 3 COMMUNICATIONS, INC. Andrew J. Petrie (#11416) Case Number: 2002CV196 Dart M. Winkler (#33916) Petrie Schwartz llp Division: A 1775 Sherman Street, Suite 2500 Denver, CO 80203 Courtroom: 2 303.226.7700 (phone) 303.226.7777 (fax) Email: apetrie@petrieschwartz.com STIPULATION OF DISMISSAL AND [PROPOSED] ORDER THEREON EXHIBIT A WHEREAS, on November 19, 2002, Plaintiff commenced this stockholder's derivative action (the "Litigation") on behalf of Level 3 Communications, Inc., against Defendants Walter Scott, Jr., James Q. Crowe, R. Douglas Bradbury, Charles C. Miller, III, Kevin J. O'Hara, Mogens C. Bay, William L. Grewcock, Richard R. Jaros, Robert E. Julian, David C. McCourt, Kenneth E. Stinson, Michael B. Yanney, Colin V.K. Williams, and Peter Kiewit Sons', Inc.; and nominal defendant Level 3 Communications, Inc. (together, "Defendants"); and WHEREAS, the Defendants denied all of the material allegations of the Plaintiff's complaint, and his entitlement to any of the relief sought; and WHEREAS, the parties to the action have resolved the issues before this Court on a mutually agreeable basis. IT IS HEREBY STIPULATED AND AGREED by and among the parties, through their respective counsel of record and in accord with C.R.C.P. 41(b), as follows: 1. Plaintiff dismisses his individual claims against Defendants, with prejudice. 2. Plaintiff dismisses the remainder of the Litigation against Defendants, without prejudice. 3. Each party shall bear his or its own costs and attorneys' fees. 4. Under the circumstances of this case, reasonable and appropriate notice to the stockholders of nominal defendant Level 3 Communications, Inc., will be provided in accord with C.R.C.P. 23.1 by Level 3 Communications, Inc. disclosing the -1- settlement in its Form 8-K or Form 10-Q filings with the United States Securities and Exchange Commission as the Court authorized at the July 15, 2005 status conference. 5. Each party has agreed that he or it shall conclusively release and hereby conclusively releases the other parties (including any subset or committee of the parties, and specifically including the Special Litigation Committee of the Board of Directors of Level 3 Communications, Inc.), their respective counsel, and, where applicable, their subsidiaries and affiliates, from any and all claims the parties asserted or could have asserted in the Litigation or arising out of the Litigation. DATED: August 9, 2005 DYER & SHUMAN, LLP /s/ Kip B. Shuman Kip B. Shuman 801 East 17th Avenue Denver, CO 80218-1417 Phone: 303-861-3003 Fax: 303-830-6920 DATED: August 9, 2005 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP /s/ Andrew J. Brown Andrew J. Brown 401 B Street, Suite 1600 San Diego, CA 92101 Phone: 619-231-1058 Fax: 619-231-7423 -2- DATED: August 9, 2005 OAKES & FOSHER, LLC /s/ Bruce D. Oakes Bruce D. Oakes 1401 S. Brentwood Blvd., Suite 560 St. Louis, MO 63144 Phone: 314-963-1760 Fax: 314-963-0765 Attorneys for Plaintiff Gary Haegele DATED: August 10, 2005 PETRIE SCHWARTZ LLP /s/ Andrew J. Petrie Andrew J. Petrie 1775 Sherman Street, Suite 2500 Denver, CO 80203 Phone: 303-226-7700 Fax: 303-226-7777 Attorneys for Nominal Defendant Level 3 Communications, Inc. DATED: August 11, 2005 HOLLAND & HART LLP /s/ Holly Stein Sollod Holly Stein Sollod 555 Seventeenth Street, Suite 3200 Denver, CO 80202 Phone: 303-295-8000 Fax: 303-295-8261 - and - -3- DATED: August 15, 2005 WILLKIE FARR & GALLAGHER LLP /s/ Stephen W. Greiner Stephen W. Greiner 787 Seventh Avenue New York, NY 10019-6099 Phone: 212-728-8000 Fax: 212-728-8111 Attorneys for Individual Defendants Walter Scott, Jr., James Q. Crowe, R. Douglas Bradbury, Charles C. Miller, III, Kevin J. O'Hara, Mogens C. Bay, William L. Grewcock, Richard R. Jaros, Robert E. Julian, David C. McCourt, Kenneth E. Stinson, Michael B. Yanney, Colin V.K. Williams DATED: August 17, 2005 BALLARD SPAHR ANDREWS & INGERSOLL LLP /s/ Roger P. Thomasch Roger P. Thomasch 1225 Seventeenth Street, Suite 2300 Denver, CO 80202 Phone: 303-292-2400 Fax: 303-296-3956 -4- DATED: August 15, 2005 WEIL GOTSHAL & MANGES LLP /s/ Irwin H. Warren Irwin H. Warren 767 Fifth Avenue New York, NY 10153-0119 Phone: 212-310-8000 Fax: 212-310-8007 Attorneys for Defendant Peter Kiewit Sons', Inc. * * * IT IS SO ORDERED. DATED: Aug 23, 2005 /s/ C. Vincent Phelps, Jr. THE HONORABLE C. VINCENT PHELPS, JR. DISTRICT COURT JUDGE -5- -----END PRIVACY-ENHANCED MESSAGE-----