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-