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 of incorporation) (I.R.S. Employer
Identification No.)
3555 Farnam Street
Omaha, Nebraska 68131
(Address of principal (Zip code)
executive offices)
LEVEL 3 COMMUNICATIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Matthew J. Johnson, Esq.
Level 3 Communications, 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 Price2 Fee
- -------------------------------------------------------------------
Common Stock, par value
$.01 per share
("Common Stock") 250,000 $68.25 $17,062,500 $5,118
1 Represents the maximum number of shares of Common Stock presently
issuable pursuant to the Level 3 Communications, Inc. (the
"Company")Employee Stock Purchase Plan (the "Plan").
2 Calculated pursuant to Rule 457(h)under the Act based on the
average of high and low sales prices of Common Stock on
June 29, 1998.
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 27, 1997, as amended by Form 10-K/A amendments filed April 23,
1998 and April 27, 1998.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934 since December 28, 1997.
(c) The description of the Company's Common 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-Corporate Legal of
the Company. Mr. Johnson owns shares of the Company's Common Stock, and may
purchase Common 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 Report on Form 8-A dated March 31, 1998).
4.2 By-laws (Exhibit 3.4 to the Report on Form 8-A dated
March 31, 1998).
4.3 Level 3 Communications, Inc. Employee Stock Purchase
Plan, as adopted June 15, 1998.
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 Coopers & Lybrand L.L.P.
23.3 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; and
(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 is 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 final adjudication of issue.
POWER OF ATTORNEY
Each of the undersigned officers and directors of the Company hereby
severally constitutes and appoints Terrence J. Ferguson, Matthew J. Johnson and
Neil J. Eckstein, 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 1st day of July,
1998.
LEVEL 3 COMMUNICATIONS, INC.
By: /s/ James Q. Crowe
James Q. Crowe
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 as of the 1st day of July, 1998.
/s/ James Q. Crowe Chairman of the Board and President
James Q. Crowe (Director and Principal
Executive Officer)
/s/ R. Douglas Bradbury Chief Financial Officer
R. Douglas Bradbury (Director and Principal
Financial and Accounting Officer)
/s/ Walter Scott, Jr. /s/ Robert B. Daugherty
Walter Scott, Jr., Director Robert B. Daugherty, Director
/s/ William L. Grewcock Charles M. Harper
William L. Grewcock, Director Charles M. Harper, Director
/s/ Richard R. Jaros /s/ Robert E. Julian
Richard R. Jaros, Director Robert E. Julian, Director
/s/ David C. McCourt /s/ Kenneth E. Stinson
David C. McCourt, Director Kenneth E. Stinson, Director
/s/ Michael B. Yanney
Michael B. Yanney, Director
LEVEL 3 COMMUNICATIONS, INC.
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
4.3 Level 3 Communications, Inc. 1998 Deferred Stock
Purchase Plan, as adopted June 15, 1998
5 Legal opinion of Matthew J. Johnson, Esq.
23.1 Consent of Coopers & Lybrand LLP
23.2 Consent of Coopers & Lybrand LLP
Exhibit 4.3
LEVEL 3 COMMUNICATIONS, INC.
1998 DEFERRED STOCK PURCHASE PLAN
(EFFECTIVE AS OF JULY 1, 1998)
1. Purpose.
The purpose of the Level 3 Communications, Inc. 1998 Deferred Stock
Purchase Plan (the "Plan") is (i) to align employee and stockholder long-term
interests by creating a direct link between compensation and stockholder
return, (ii) to enable employees to develop and maintain a substantial equity
ownership position in Level 3 Communications, Inc., and (iii) to provide
incentives to such employees to contribute to the success of the business of
Level 3 Communications, Inc.
2. Definitions.
As used in this Plan, the following words and phrases shall have the
meanings indicated:
"Administrator" shall mean the Compensation Committee or its
delegate which administers the Plan in accordance with Article 9.
"Base Salary" shall mean the base salary payable to a Participant by
the Company or a Subsidiary, plus overtime, shift premium and cost-of-living
adjustments.
"Beneficiary" shall mean that person or persons designated by a
Participant to receive the Stock distributable from the Participant's
Deferral Account and Matching Account in the event of such Participant's
death, in accordance with Article 8. Such designation shall be made on a
form provided by the Administrator. A Participant may from time to time
change his designated Beneficiaries by filing a new designation in writing
with the Administrator. A Participant may designate a Beneficiary, or change
a prior designation, only in accordance with the beneficiary designation
procedures applicable to the Company's Employee Stock Bonus Plan. The
Company and the Administrator may rely conclusively upon the Beneficiary
designation last filed in accordance with the terms of the Plan. If there is
no surviving designated Beneficiary, the Beneficiary shall be deemed to be
the Participant's spouse or, if the Participant has no spouse, the
Participant's estate.
"Board" shall mean the Board of Directors of the Company, or the
Compensation Committee of the Board, acting pursuant to authority granted by
the Board.
"Bonus" shall mean the annual bonus (but not any signing or hiring
bonus) payable to a Participant by the Company or a Subsidiary under any
bonus plan or arrangement maintained by the Company or a Subsidiary.
"Bonus Deferral Agreement" shall mean an agreement entered into
between the Company (on behalf of itself and, in the case of any Participant
employed by a Subsidiary, on behalf of such Subsidiary) and a Participant to
defer from 1% to 7% (in whole number increments as indicated on such Bonus
Deferral Agreement) of such Participant's Bonus pursuant to Section 5(b).
"Change in Control" shall mean a Change in Control, as defined
under the Company's 1995 Stock Plan, as amended from time to time.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Commissions" shall mean commission income payable by the Company
or a Subsidiary to a Participant.
"Commission Deferral Agreement" shall mean an agreement entered
into between the Company (on behalf of itself and, in the case of any
Participant employed by a Subsidiary, on behalf of such Subsidiary) and a
Participant to defer from 1% to 7% (in whole number increments as indicated
on such Commission Deferral Agreement) of such Participant's Commissions
pursuant to Section 5(b).
"Compensation Committee" shall mean the Compensation Committee of
the Board.
"Company" shall mean Level 3 Communications, Inc., a Delaware
corporation, or any successor corporation.
"Deferral Account" shall mean the bookkeeping account established
by the Company for each Participant to reflect Stock Units credited to such
Participant which are attributable to his or her Deferral Contributions.
"Deferral Contribution" shall mean a Participant's deferral of Base
Salary, Bonus or Commissions, which is translated into Stock Units and
credited to a Participant's Deferral Account in accordance with Section 6(a).
"Disability" means the Employee has become eligible for benefits
under the Company's or a Subsidiary's long-term disability program or the
Employee has become permanently unable to perform his duties to the Company
in the good faith determination of the Compensation Committee.
"Effective Date" shall mean July 1, 1998.
"Employee" shall mean a person who qualifies as an Employee
pursuant to the Company's Employee Stock Bonus Plan, as amended from time to
time, and who is regularly scheduled to work more than 30 hours per week.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Fair Market Value" of a share of Stock on any given day shall
mean: (i) the closing price per share of Stock on the national securities
exchange on which the Stock is principally traded, on the next preceding date
on which there was a sale of Stock on such exchange, or (ii) if the Stock is
not listed or admitted to trading on any such exchange, the last sale price
of a share of Stock as reported by the National Association of Securities
Dealers Inc. Automated Quotation ("NASDAQ") system on the next preceding date
on which such bid and asked prices were reported, or (iii) if the Stock is
not then listed on any securities exchange or prices therefor are not then
quoted in the NASDAQ system, the value determined by the Compensation
Committee in good faith.
"Matching Account" shall mean the bookkeeping account established
by the Company for each Participant to reflect Stock Units credited to each
Participant which are attributable to Matching Contributions.
"Matching Contribution" shall mean Stock Units credited to a
Participant's Matching Account from time to time in accordance with Section
6(b).
"Participant" shall mean an Employee who has properly filed with
the Company a Salary Deferral Agreement, a Bonus Deferral Agreement or a
Commission Deferral Agreement pursuant to Article 5.
"Pay Period" shall mean each payroll period of the Company or a
Subsidiary, as the case may be.
"Plan" shall mean this Level 3 Communications, Inc. 1998 Deferred
Stock Purchase Plan, as amended from time to time.
"Purchase Date" shall mean the last day of the Quarter with respect
to any Base Salary, a Bonus or Commissions which are deferred pursuant to a
Salary, Bonus or Commission Deferral Agreement in effect during such Quarter.
"Quarter" shall mean a calendar quarter during a Year.
"Salary Deferral Agreement" shall mean an agreement entered into
between the Company (on behalf of itself and, in the case of any Participant
employed by a Subsidiary, on behalf of such Subsidiary) and a Participant to
defer from 1% to 7% (in whole number increments as indicated on such Salary
Deferral Agreement) of such Participant's Base Salary in accordance with
Section 5(a).
"Stock" shall mean the common shares of the Company, par value
$0.01 per share.
"Stock Units" shall mean units credited to Deferral Accounts and
Matching Accounts, rounded to the nearest one one-hundredth of a share,
representing a Participant's right to receive one share of Stock for each
such whole unit upon satisfaction of the criteria set forth in the Plan.
"Subsidiary" shall mean any subsidiary of the Company (whether or
not a subsidiary at the date the Plan is adopted) other than a subsidiary
which is designated by the Compensation Committee or Board as not eligible to
participate in the Plan.
"Vesting Date" shall mean, with respect to Stock Units credited to
a Participant's Matching Account, the third anniversary of the Purchase Date
relating to such Stock Units.
"Year" shall mean the calendar year.
3. No Shares Subject to the Plan.
No shares of Stock shall be reserved for, or issued under, the
Plan. To the extent that shares of Stock are delivered to Participants
pursuant to the provisions of this Plan, such shares shall be issued under,
and shall be subject to the applicable terms and conditions of, the Company's
1995 Stock Plan, as amended from time to time.
4. Eligibility.
(a) Prior to the Effective Date. Any person who is an Employee
prior to the Effective Date shall become eligible to participate in the Plan
on the Effective Date, provided such person remains an Employee on the
Effective Date.
(b) On or After the Effective Date. On or after the Effective
Date, Employees not eligible on the Effective Date pursuant to Section 4(a)
shall first become eligible to participate in the Plan at the beginning of
the Quarter following such Employee's employment commencement date with the
Company or a Subsidiary.
5. Participation.
(a) Base Salary Deferrals. An eligible Employee may participate
in the Plan with respect to deferrals of Base Salary by filing a Salary
Deferral Agreement with the Company. Salary Deferral Agreements may be filed
prior to the time an Employee first becomes eligible to participate in the
Plan. Except as provided in clause 1, 2, 3 or 4 below, a Salary Deferral
Agreement shall be effective as of the first Pay Period ending in the Quarter
following the Quarter in which it is filed with the Company. A Salary
Deferral Agreement shall remain in effect for each remaining Quarter of the
Year for which so filed. However, notwithstanding the above:
1. Except to the extent provided in clause 4 below, a Participant may
amend or revoke a Salary Deferral Agreement by filing a new Salary Deferral
Agreement with the Company, or a revocation of the current Salary Deferral
Agreement on such form as shall be acceptable to the Administrator, in either
case to take effect in the first Pay Period ending in the Quarter following the
Quarter in which such document is filed with the Company. A Participant who
amends a Salary Deferral Agreement may subsequently further amend such amended
Salary Deferral Agreement in accordance with the preceding sentence. A
Participant who revokes a Salary Deferral Agreement may subsequently file a new
Salary Deferral Agreement with the Company, to take effect in the first Pay
Period ending in the Quarter following the Quarter in which such new Salary
Deferral Agreement is filed with the Company.
2. Notwithstanding clause 4 below, an Employee who is
eligible to participate in the Plan on the Effective Date may file a Salary
Deferral Agreement with the Company no later than July 1, 1998, such Salary
Deferral Agreement to take effect for the first Pay Period ending on or after
the Effective Date.
3. Notwithstanding clause 4 below, an Employee who first
commences employment following the Effective Date may file a Salary Deferral
Agreement with the Company no later than 30 days following such commencement,
such Salary Deferral Agreement to take effect for the first Pay Period
beginning as soon as practicable after being so filed, but only with respect
to Base Salary earned during and following such Pay Period.
4. A Salary Deferral Agreement, an amendment to a Salary
Deferral Agreement or a revocation of a Salary Deferral Agreement must be
filed with the Company no later than 30 days prior to the end of the Quarter
preceding the Quarter in which it is first effective. Any such document
filed later than that time, but otherwise in accordance with this Section
5(a), shall take effect in the first Pay Period ending in the second Quarter
following the date of filing.
(b) Bonus/Commission Deferrals. An eligible Employee may
participate in the Plan with respect to deferrals of Bonus and/or Commissions
by filing a Bonus Deferral Agreement and/or a Commission Deferral Agreement
with the Company. Bonus Deferral Agreements and Commission Deferral
Agreements may be filed prior to the time an Employee first becomes eligible
to participate in the Plan. A Bonus Deferral Agreement and a Commission
Deferral Agreement shall be effective as to any Bonus or Commission, as
applicable, payable during the Year following the Year in which it is so
filed, and is irrevocable. However, notwithstanding the above:
1. An Employee who first becomes eligible to participate in
the Plan on the Effective Date may file an irrevocable Bonus Deferral
Agreement and/or Commission Deferral Agreement with the Company with respect
to Bonuses and Commissions attributable to the Year 1998 no later than June
30, 1998, such Agreements to take effect as of July 1, 1998.
2. An Employee who first becomes eligible to participate in the Plan
following the Effective Date may file an irrevocable Bonus Deferral Agreement
and/or Commission Deferral Agreement with the Company with respect to Bonuses
and Commissions attributable to the Year of such initial eligibility no later
than 30 days following commencement of employment, such Agreements to take
effect as soon as practicable after being so filed.
3. The Administrator reserves the right to reject any such
Bonus and/or Commission Deferral Agreement to the extent it determines that
the amount of the Bonus or Commission to which such Agreement relates is
earned or determinable at the time such Agreement otherwise would become
effective. Further, except as otherwise provided herein, any such Bonus
and/or Commission Deferral Agreement shall be effective only with respect to
Commissions or Bonuses paid following the time such Agreement becomes
effective, and in the Year following the time such Agreement is filed with
the Company.
(c) Cessation of Participation. A Participant ceases to be a
Participant on the date on which Stock attributable to all Stock Units
credited to his or her Deferral Account and Matching Account have been
completely paid out or forfeited in accordance with Article 8.
Notwithstanding any provision of the Plan to the contrary, in the case of a
Participant who ceases to be an Employee, but continues to be a common-law
employee of the Company or any affiliate, for so long as he or she is not an
Employee (i) such person shall not have the right to elect to make deferrals
of Salary, Bonus and/or Commissions under the Plan, and (ii) any Salary,
Bonus and/or Commission Deferral Agreement in effect at the time such person
ceases to be an Employee shall become null and void and of no effect.
6. Crediting to Accounts.
(a) Deferral Accounts. On each Purchase Date, the Company shall
credit each Participant's Deferral Account with a number of Stock Units equal
to (i) the amount of such Participant's deferral attributable to such
Purchase Date pursuant to his or her Salary, Bonus or Commission Deferral
Agreement, as applicable, divided by (ii) the average Fair Market Value of a
share of Stock which is determined over the number of trading days arising
during the Quarter ending coincident with the last trading day of the
Quarter.
(b) Matching Accounts. On each Purchase Date, the Company shall
credit each Participant's Matching Account with that number of Stock Units
credited on such Purchase Date to the Participant's Deferral Account.
(c) Dividends. No adjustment shall be made to Stock Units
credited to Deferral Accounts or Matching Accounts on account of cash
dividends paid on Stock.
(d) Effect of Payments. The amount of Stock Units credited to a
Participant's Deferral Account and Matching Account shall be reduced by the
number of shares of Stock distributed to the Participant or his Beneficiary
(including any Stock Units canceled by the Company in accordance with Section
8(f)) or, in the case of a Matching Account, forfeited in accordance with
Section 8(d).
(e) Effect of Certain Changes. In the event of any extraordinary
dividend, share dividend, recapitalization, merger, consolidation, share
split, warrant or rights issuance, or combination or exchange of the Stock,
or other similar transactions, the number of Stock Units credited to each
Participant's Deferral Account and Matching Account shall be equitably
adjusted by the Administrator (which for this purpose shall be the
Compensation Committee), in its discretion, to reflect such event, and such
Administrator may make such other adjustments to the terms of outstanding
Stock Units as it may deem equitable under the circumstances.
7. Vesting.
(a) Deferral Accounts. A Participant shall at all times be fully
vested in the Stock Units credited to his or her Deferral Account.
(b) Matching Accounts. Except as specifically noted below in
this Section 7(b), a Participant shall vest in any particular Stock Units
credited to his or her Matching Account on the Vesting Date applicable to
such Stock Units.
In addition, notwithstanding the general vesting provisions stated
above, a Participant shall become fully vested in all Stock Units credited to
his or her Matching Account upon the occurrence of any of the following:
(i) the death or Disability of a Participant while still
employed with the Company or a Subsidiary;
(ii) the termination of a Participant's employment with
the Company or a Subsidiary after attaining age 62;
(iii) a Change in Control; or
(iv) any other date selected by the Compensation
Committee.
For purposes of the above conditions (i) through (iv), the term
"Subsidiary" shall include subsidiaries of the Company which do not
participate in the Plan.
8. Payment of Accounts; Forfeitures
(a) Matching Account Payments. On, or as soon as practicable
after, any Stock Units credited to a Participant's Matching Account become
vested in accordance with Section 7(b), the Company shall issue to the
Participant or his or her Beneficiary, as applicable, that number of shares
of Stock equal to the whole Stock Units which become so vested.
(b) Deferral Account Payments. At the same time as shares of
Stock attributable to a Participant's Matching Account are issued to the
Participant or his or her Beneficiary, as applicable, in accordance with
Section 8(a), the Company shall issue to such person that number of shares of
Stock equal to the whole Stock Units that were credited to the Participant's
Deferral Account on the Purchase Dates with respect to the Stock Units to
which the Matching Account distribution relates. Additionally, at the time,
or as soon as practicable after, Stock Units credited to a Participant's
Matching Account are forfeited in accordance with Section 8(d), the Company
shall issue to the Participant that number of shares of Stock equal to the
whole Stock Units then credited to the Participant's Deferral Account.
(c) Fractional Stock Units. No distributions shall be made with
respect to fractional Stock Units credited to any Deferral Account or
Matching Account. Following the distribution of Stock to a Participant
representing all whole Stock Units then credited to his or her Deferral
Account and Matching Account, any remaining fractional Stock Units shall be
credited towards the payment of any applicable Federal withholding taxes that
may be owed with respect to such distribution.
(d) Forfeitures of Matching Account Stock Units. If a
Participant's employment with the Company and all Subsidiaries (including,
for this purpose, subsidiaries of the Company which do not participate in the
Plan) terminates in a manner which does not result in accelerated vesting of
the Stock Units credited to the Participant's Matching Account in accordance
with Section 7(b), any unvested whole and fractional Stock Units in such
Matching Account shall be forfeited.
(e) Effect of Denial of Tax Treatment. Employee deferrals and
Company matches under the Plan are intended to be taxable to Participants no
earlier than the time that Stock attributable to such deferrals and matches
is distributed. If, in the sole determination of the Administrator (which
for this purpose shall be the Compensation Committee), taxation of any such
amount to Participants is accelerated to any earlier time, the Compensation
Committee shall cause that number of vested shares of Stock to be distributed
to Participants equal to the number of shares with respect to which the
income is accelerated.
(f) Withholding. Stock distributed pursuant to the Plan shall be
subject to all applicable Federal, state and local income taxes and
withholding. Such withholding generally shall be satisfied by the
cancellation of Stock Units, including any fractional Stock Units. However,
the Administrator may, in its discretion, allow Participants to instead
satisfy any withholding obligation by remitting to the Company the amount of
any required withholding in cash.
(g) Discharge of Obligations. Any payment made to a Participant
or his Beneficiary pursuant to the Plan (including any cancellation of Stock
Units pursuant to Section 8(f)) shall constitute a complete discharge of the
obligations of the Company and the Subsidiaries with respect thereto.
9. Administration.
The Plan shall be administered by the Administrator. The
Administrator shall have the authority in its discretion, subject to and not
inconsistent with the express provisions of the Plan, to administer the Plan
and to exercise all the powers and authorities either specifically granted to
it under the Plan or necessary or advisable in the administration of the
Plan, including, without limitation, to interpret the Plan; to prescribe,
amend and rescind rules and regulations relating to the Plan; to make
eligibility determinations; to determine the terms and provisions of the
Salary, Bonus and Commission Deferral Agreements; to make determinations with
respect to Federal, state and local income tax withholding; and to make all
other determinations deemed necessary or advisable for the administration of
the Plan. All decisions, determinations and interpretations of the
Administrator shall be final and binding on all persons, including the
Company, the Participants (and any person claiming any rights under the Plan
from or through any Participant) and any stockholder. No member of the Board
or Compensation Committee or other Administrator shall be liable for any
action taken or determination made in good faith with respect to the Plan or
any grant hereunder. The Company shall indemnify and save harmless the
Administrator and the members thereof (if a committee) and its officers,
employees and directors against all expenses and liabilities arising out of
any of their actions in administering the Plan.
10. Amendment and Termination of the Plan.
The Board, the Executive Committee of the Board or the Compensation
Committee, at any time and from time to time, may amend, suspend or terminate
the Plan without the approval of the Participants, the Company's shareholders
or any other person or entity. Notwithstanding the above, no action taken
shall adversely affect the rights of any Participant (or any person claiming
any rights under the Plan from or through any Participant) with respect to
payment of amounts attributable to Stock Units credited to such Participant's
Deferral Account and Matching Account at the time such action is taken,
unless the Participant (or such other person) otherwise consents thereto.
The Plan has no fixed termination date.
11. General Provisions.
(a) No Rights as a Stockholder. Neither a Participant (nor any
person claiming any rights under the Plan from or through any Participant)
shall have any rights as a stockholder with respect to any shares of Stock
until the date of the issuance of a share certificate to him or her for such
shares.
(b) No Rights to Employment. Nothing in the Plan or in any
Salary, Bonus or Commission Deferral Agreement shall confer upon any
Participant the right to continue in the employ of the Company or any
Subsidiary or affiliate, or to be entitled to any remuneration or benefits
not set forth in the Plan or to interfere with, or limit in any way, the
right of the Company or any Subsidiary or affiliate to terminate such
Participant's employment.
(c) Governing Law. The Plan and the rights of all persons
claiming hereunder shall be construed and determined in accordance with the
laws of the state of Colorado without giving effect to the choice of law
principles thereof.
(d) Section 16 of the Exchange Act. Transactions under this Plan
are intended to be exempt from Section 16(b) of the Exchange Act pursuant to
Rule 16b-3(b)(5). Any provisions inconsistent with such provisions shall be
inoperative and shall not affect the validity of the Plan.
(e) Restrictions. A Participant's rights under the Plan may not
be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of (except by will or the applicable laws of descent and distribution) prior
to the distribution of Stock to the Participant or his or her Beneficiary.
Any attempt to dispose of any such rights in contravention of such
restrictions shall be null and void and without effect.
(f) Unfunded Status of the Plan. The undertaking to pay any
benefits hereunder shall be an unfunded obligation payable solely from the
general assets of the Company and subject to the claims of the Company's
creditors. The Stock Units and Deferral and Matching Accounts shall be
maintained as a book reserve account solely for accounting purposes. The
Administrator reserves the right to take any and all reasonable steps to
provide for the payment of all or part of the benefits payable under this
Plan to the greatest extent possible without compromising the unfunded status
of the Plan, including, without limitation, the delivery of shares of Stock
to a grantor trust (within the meaning of Section 671 of the Code) to
facilitate the delivery of such shares to Participants in satisfaction of the
Company's obligations under this Plan.
(g) Payments to Minors or Incompetents. If the Administrator
determines that any person to whom a payment is due hereunder is a minor or
incompetent by reason of physical or mental disability, the Administrator
shall have the power to cause the payments then due to such person to be made
to another for the benefit of the minor or incompetent, without
responsibility of the Company or the Administrator to see to the application
of such payment, unless claim prior to such payment is made therefor by a
duly appointed legal representative. Payments made pursuant to such power
shall operate as a complete discharge of the Company and the Administrator.
(h) Right of Offset. The Company shall have the right to retain
or to use any amounts payable under the Plan to satisfy or otherwise offset
amounts the Participant owes to the Company or any Subsidiary (including for
this purpose any subsidiary of the Company which does not participate in the
Plan).
As adopted by the Board of Directors
of Level 3 Communications, Inc.
as of June 15, 1998.
By: /s/ Matthew J. Johnson
Vice President and Assistant Secretary
Exhibit 5
LEVEL 3 COMMUNICATIONS, INC.
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3677
Fax: (402) 536-3645
June 30, 1998
Level 3 Communications, Inc.
3555 Farnam Street
Omaha, Nebraska 68131
Gentlemen:
I have acted as counsel to Level 3 Communications, 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 250,000 shares of its Common Stock, par value
$.01 per share ("Common Stock"), pursuant to the Employee Stock
Purchase Plan of the Company (as adopted June 15, 1998).
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 Common
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
Vice President-Legal
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Level 3 Communications, Inc. (formerly known as Peter Kiewit
Sons', Inc.) on Form S-8 of our report dated March 30, 1998 on our audits of
the consolidated financial statements of Level 3 Communications, Inc.
(formerly known as Peter Kiewit Sons', Inc.) as of December 27, 1997 and
December 28, 1996 and for each of the three years in the period ended
December 27, 1997 which report is included in the Annual Report on Form 10-
K/A of Level 3 Communications, Inc. (formerly known as Peter Kiewit Sons',
Inc.).
Coopers & Lybrand LLP
/s/ Coopers & Lybrand LLP
Omaha, Nebraska
June 30, 1998
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Level 3 Communications, Inc. (formerly known as Peter Kiewit
Sons', Inc.) on Form S-8 of our report dated March 13, 1998, except Note 2 as
to which the date is May 20, 1998, on our audits of the consolidated
financial statements and financial statement schedules of RCN Corporation and
Subsidiaries as of December 31, 1997 and 1996, and for the years ended
December 31, 1997, 1996 and 1995, which report is incorporated by reference
in the Annual Report on Form 10-K/A of Level 3 Communications, Inc. (formerly
known as Peter Kiewit Sons', Inc.).
Coopers & Lybrand LLP
/s/ Coopers & Lybrand LLP
Philadelphia, Pennsylvania
June 30, 1998
