S-8 1 fs8_05212004.txt REGISTRATION STATEMENT ON FORM S-8 As filed with the Securities and Exchange Commission on May 21, 2004 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 Form S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 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 Number) 1025 Eldorado Blvd. Broomfield, Colorado 80021 (Address, including zip code, of principal executive offices) LEVEL 3 COMMUNICATIONS, INC. 1995 STOCK PLAN (Full title of plan) Thomas C. Stortz, Esq. 1025 Eldorado Blvd. Broomfield, Colorado 80021 (720) 888-1000 (Name, address, including zip code, and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE --------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of registered registered (1) offering price per aggregate offering registration fee share (2) price (2) --------------------------- ---------------------- ----------------------- ---------------------- ---------------------- Common Stock, par value $0.01 per share 130,000,000 $3.36 $436,800,000 $55,343 (the "Common Stock")
(1) Represents 130,000,000 shares of Common Stock of Level 3 Communications, Inc. (the "Common Stock") issuable pursuant to the Level 3 Communications, Inc. 1995 Stock Plan (the "Plan"). In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement covers an indeterminable number of additional shares as may hereafter be offered or issued, pursuant to the Plans, to prevent dilution resulting from stock splits, stock dividends or similar transactions. (2) Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act, based on the average of the high and low sales prices of the Common Stock as reported by the Nasdaq National Market on May 20, 2004. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The documents containing the information specified in Part I of Form S-8 have been or will be sent or given to participating employees as specified in Rule 428(b)(1) of the Securities Act, in accordance with the rules and regulations of the United States Securities and Exchange Commission (the "Commission"). Such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents, filed with the Commission by the Registrant, are incorporated by reference into the Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ending December 31, 2003, filed pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"); (b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2004; (c) The Registrant's amended Quarterly Reports on Form 10-Q/A-1 for the fiscal quarters ended March 31, 2003, June 30, 2003 and September 30, 2003, all filed on March 5, 2004, pursuant to the Exchange Act; and (d) The description of the Registrant's Common Stock incorporated by reference into the Company's Registration Statement on Form 8-A, as amended, filed pursuant to the Exchange Act, on March 31, 1998. In addition, all documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all the securities offered hereby 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 the filing of such documents with the Commission. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded. Item 4. DESCRIPTION OF SECURITIES Inapplicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the issuance of the Common Stock offered under the Plan is being passed upon by Neil J. Eckstein, Senior Vice President of the Registrant. Mr. Eckstein will be eligible to participate in the Registrant's 1995 Stock Option Plan, pursuant to the terms of the Plan and at the discretion of the Registrant, to the same extent as other eligible senior officers of the Registrant. As of the date of this Registration Statement, Mr. Eckstein owns 566 shares of Common Stock. 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 Registrant'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 Registrant to maintain insurance on behalf of officers and directors against liabilities incurred while acting in such capacities. The Registrant maintains such insurance. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Inapplicable. Item 8. EXHIBITS Exhibit No. Description of Exhibit 5 Opinion of Neil J. Eckstein, Senior Vice President of Level 3 Communications, Inc. 23.1 Consent of KPMG LLP 23.2 Information Regarding Arthur Andersen LLP 23.3 Consent of Neil J. Eckstein, Senior Vice President of Level 3 Communications, Inc. (included in Exhibit 5). 24 Power of Attorney (reference is made to the signature page). Item 9. UNDERTAKINGS The undersigned registrant hereby undertakes: 1. (a) 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 (1)(a)(i) and (1)(a)(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. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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) 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. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by 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 Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets 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 Broomfield, State of Colorado, on May 21, 2004 LEVEL 3 COMMUNICATIONS, INC. By: /s/ James Q. Crowe James Q. Crowe Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitute and appoint Thomas C. Stortz and Neil J. Eckstein, as his true and lawful attorney-in-fact and agent for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned to sign and file with the Securities and Exchange Commission under the Securities Act of 1933, as amended, (i) any and all pre-effective and post-effective amendments to this registration statement, (ii) any registration statement relating to this offering that is to be effective upon filing pursuant to rule 462(b) under the Securities Act of 1933, as amended, (iii) any exhibits to any such registration statement or pre-effective or post-effective amendments, (iv) any and all applications and other documents in connection with any such registration statement or pre-effective or post-effective amendments, and generally to do all things and perform any and all acts and things whatsoever requisite and necessary or desirable to enable Level 3 Communications, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Name Title Date /s/ Walter Scott Jr. Chairman of the Board May 21, 2004 Walter Scott, Jr. /s/ James Q. Crowe Chief Executive Officer and May 21, 2004 James Q. Crowe Director /s/ Sunit S. Patel Group Vice President May 21, 2004 Sunit S. Patel and Chief Financial Officer (Principal Financial Officer) /s/ Eric J. Mortensen Sr. Vice President and Controller May 21, 2004 Eric J. Mortensen (Principal Accounting Officer) /s/ Mogens C. Bay Director May 21, 2004 Mogens C. Bay /s/ Richard R. Jaros Director May 21, 2004 Richard R. Jaros /s/ Robert E. Julian Director May 21, 2004 Robert E. Julian /s/ David C. McCourt Director May 21, 2004 David C. McCourt /s/ Arun Netravali Director May 21, 2004 Arun Netravali /s/ John T. Reed Director May 21, 2004 John T. Reed /s/ Michael Yanney Director May 21, 2004 Michael Yanney