As filed with the Securities and Exchange Commission on February 3, 1999
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
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 (I.R.S. Employer
of incorporation) Identification No.)
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3677
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Thomas C. Stortz, Esq.
Senior Vice President, General Counsel and Secretary
3555 Farnam Street
Omaha, Nebraska 68131
(402) 536-3677
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
with copies to:
John S. D'Alimonte, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
(212) 728-8000
Approximate date of commencement of proposed sale to the public: From
time to time, after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering.
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box.
The Registrant hereby amends this Registration Statement on such date
or dates a may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(Cover continued on following page)
<PAGE>
(Cover continued from previous page)
<TABLE>
CALCULATION OF REGISTRATION FEE
================================================================================================================
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered per Share(1) Offering Price(1) Fee
<S> <C> <C> <C> <C>
------------------------------------------------------------------
================================================================================================================
Common Stock, par value $.01
per share 4,517,540 $48.375 $218,535,997 $60,753
================================================================================================================
<FN>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended,
based upon the last sale price of the Common Stock as reported on the
Nasdaq National Market on January 27, 1999 ($48.375).
</FN>
================================================================================================================
</TABLE>
<PAGE>
[GRAPHIC OMITTED]
SUBJECT TO COMPLETION, DATED FEBRUARY 3, 1999
PROSPECTUS
Level 3 Communications, Inc.
4,517,540 Shares of Common Stock
The stockholders of Level 3 Communications, Inc. listed on page 3 are
offering and selling 4,517,540 shares of our Common Stock under this Prospectus.
We issued these shares to the selling stockholders in connection with our
acquisitions of XCOM Technologies, Inc. in April 1998 and GeoNet Communications,
Inc. in September 1998.
Our Common Stock is quoted on the Nasdaq National Market under the symbol
"LVLT." On January 27, 1999, the closing price of the Common Stock on the Nasdaq
National Market was $48.375 per share.
The selling stockholders may offer their shares of Common Stock through
public or private transactions, at prevailing market prices, or at privately
negotiated prices.
We will not receive any of the proceeds from the sale of the Common Stock.
All costs, expenses and fees in connection with the registration of the Common
Stock will be paid by us, except that the selling stockholders will pay their
own underwriting discounts and selling commissions. See "Plan of Distribution"
on page 5.
Investing in the Common Stock involves a high degree of risk. See "Risk
Factors" on page 1 for a discussion of certain matters that you should consider
before buying shares of the Common Stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is a
criminal offense.
The information in this Prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
The date of this Prospectus is , 1999
<PAGE>
TABLE OF CONTENTS
Page
WHERE YOU CAN FIND MORE INFORMATION............................................1
RISK FACTORS...................................................................1
THE COMPANY....................................................................2
APPLICATION OF PROCEEDS........................................................2
SELLING STOCKHOLDERS...........................................................2
DESCRIPTION OF OUTSTANDING CAPITAL STOCK.......................................4
Common Stock..............................................................4
Preferred Stock...........................................................4
Anti-Takeover Provisions..................................................4
PLAN OF DISTRIBUTION...........................................................5
LEGAL MATTERS..................................................................6
EXPERTS........................................................................6
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference room. Our SEC filings are also available at
the offices of the Nasdaq National Market, in Washington, D.C.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference our documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of
1934 until we sell all of the securities.
o Annual Report on Form 10-K/A for the fiscal year ended December 27, 1997;
o Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998;
o Current Reports on Form 8-K, filed June 9, 1998, September 1, 1998, October
1, 1998, October 5, 1998, December 2, 1998 and December 7, 1998 and on Form
8-K/A, filed April 30, 1998; and
o Registration Statements on Forms 8-A/A filed March 31, 1998 and June 10,
1998.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Vice President, Investor Relations
Level 3 Communications, Inc.
1450 Infinite Drive
Louisville, CO 80027
303-926-3000
You should rely only on the information incorporated by reference or
provided in this Prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date on
the front of the document.
RISK FACTORS
Before you invest in shares of our Common Stock, you should carefully
consider the risks involved. These risks include, but are not limited to, (1)
the risks described in our Current Report on Form 8-K filed with the SEC on
December 7, 1998, which is incorporated by reference in this Prospectus and (2)
any risks that may be described in any other filings we make with the SEC.
<PAGE>
Unless the context otherwise requires, references in this Prospectus to
"we" or "us" are to Level 3 Communications, Inc., a Delaware corporation, and
its subsidiaries. Level 3 Communications, Inc. was known as "Peter Kiewit Sons',
Inc." prior to the March 31, 1998 split-off of its construction and mining
management business from its other businesses.
THE COMPANY
We engage in the information services, communications and coal mining
businesses through ownership of operating subsidiaries and substantial equity
positions in public companies. In late 1997, we announced a business plan to
increase substantially our information services business and to expand the range
of services we offer. We will implement our business plan by building an
advanced, international, facilities-based communications network based on
Internet Protocol, or IP, technology.
Since late 1997, we have substantially increased the emphasis we place on
and the resources devoted to our communications and information services
business. We intend to become a facilities-based provider of a broad range of
integrated communications services. A facilities-based provider is one that owns
or leases a substantial portion of the plant, property and equipment necessary
to provide its services. To reach this goal, we plan to expand substantially the
business of our subsidiary PKS Information Services, Inc. and to create, through
a combination of construction, purchase and leasing of facilities and other
assets, an international, end-to-end, facilities-based communications network.
We are designing our network based on IP technology in order to leverage the
efficiencies of this technology to provide lower cost communications services.
Our network will combine both local and long distance networks and will
connect customers end-to-end across the U.S. and in Europe and Asia. We expect
to complete the U.S. intercity portion of the network during the first quarter
of 2001. In the interim, we have leased a national network over which we began
to offer services in the third quarter of 1998. We intend to provide a full
range of communications services-- including local, long distance, international
and Internet services.
Our principal executive offices are located at 3555 Farnam Street, Omaha,
Nebraska 68131 and our telephone number is (402) 536-3677.
APPLICATION OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
Common Stock by the selling stockholders.
SELLING STOCKHOLDERS
We issued the shares of Common Stock to the selling stockholders in
connection with our acquisitions of XCOM Technologies, Inc. in April 1998 and
GeoNet Communications, Inc. in September 1998. We are registering the selling
stockholders' shares of Common Stock in accordance with the terms of a
Registration Rights Agreement, dated April 23, 1998 (the "XCOM Registration
Rights Agreement") and a Registration Rights Agreement, dated September 30, 1998
(the "GeoNet Registration Rights Agreement" and, together with the XCOM
Registration Rights Agreement, the "Registration Rights Agreements"), that we
entered into with the selling stockholders and certain other persons. Our
registration of the shares of Common Stock does not necessarily mean that the
selling stockholders will sell all or any of the shares of Common Stock.
<PAGE>
The following table lists certain information concerning the selling
stockholders, including the number of shares of Common Stock beneficially owned
by each selling stockholder as of January 12, 1999 and the number of shares of
Common Stock that each selling stockholder may sell under this Prospectus.
<TABLE>
<CAPTION>
Shares Shares
Beneficially Shares Beneficially
Owned Prior to Being Owned After
Selling Stockholder Offering (1) Offered Offering (2)
<S> <C> <C> <C>
Family Living Trust of John G. Balletto and Marni
A. Balletto dated 8/12/98 (3) 5,574 5,574 0
- ----------------------------------------------------
Sunrise Capital Fund I, LLC (3) 8,361 8,361 0
- ----------------------------------------------------
Robert Peters and Carolyn Peters, Trustees of the
Robert W. Peters and Carolyn H. Peters 1992
Trust UTA 1/10/92 (3) 2,787 2,787 0
- ----------------------------------------------------
Thomas J. Cervantez (3) 2,007 2,007 0
- ----------------------------------------------------
Adam Waters (3) 251 251 0
- ----------------------------------------------------
CEA Montgomery Media, LLC (4) 29,937 29,937 0
- ----------------------------------------------------
Dean Witter Reynolds, Inc. Custodian for Robert R.
Lux IRA Rollover dated 9/1/89 (3) 1,394 1,394 0
- ----------------------------------------------------
Seok Ki Kim (3) 13,935 13,935 0
- ----------------------------------------------------
Christopher Duncan (3) 74 74 0
- ----------------------------------------------------
Donna J. Booher (3) 3,763 3,763 0
- ----------------------------------------------------
John A. Russo (3) 401,318 401,318 0
- ----------------------------------------------------
AK Investments, Inc. (3) 41,804 41,804 0
- ----------------------------------------------------
David F. Callan (5) 754,079 754,079 0
- ----------------------------------------------------
Shawn Lewis (5) 560,256 560,256 0
- ----------------------------------------------------
Scott Morrisse (5) 157,668 157,668 0
- ----------------------------------------------------
Robert Benedict (5) 78,836 78,836 0
- ----------------------------------------------------
Paula Wood (5) 52,556 52,556 0
- ----------------------------------------------------
Lori Lilly (5) 52,556 52,556 0
- ----------------------------------------------------
Battery Ventures IV, LP (5) 747,557 747,557 0
- ----------------------------------------------------
Battery Investment Partners IV, LLC (5) 11,395 11,395 0
- ----------------------------------------------------
Matrix Partners IV, LP (5) 1,511,860 1,511,860 0
- ----------------------------------------------------
Matrix IV Entrepreneurs Fund, LP (5) 79,572 79,572 0
- ----------------------------------------------------
<FN>
(1) Beneficial ownership is determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934. Each selling stockholder owns less than 1%
of the total number of shares of Common Stock outstanding.
</FN>
<FN>
(2) Assumes that all of the shares of Common Stock held by each selling
stockholder and being offered under this Prospectus are sold, and that no
selling stockholder will acquire additional shares of Common Stock before
the completion of this offering.
</FN>
<FN>
(3) Former shareholder of GeoNet Communications, Inc., which we acquired in
September 1998.
</FN>
<FN>
(4) Former financial advisor to GeoNet Communications, Inc., which we acquired
in September 1998.
</FN>
<FN>
(5) Former stockholder of XCOM Technologies, Inc., which we acquired in April
1998.
</FN>
</TABLE>
We may amend or supplement this Prospectus from time to time in the future
to update or change this list of selling stockholders and shares which may be
offered and sold.
<PAGE>
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
We have summarized certain terms and provisions of our outstanding capital
stock in this section. The summary is not complete. We have also filed our
Restated Certificate of Incorporation, our By-Laws and the Certificate of
Designation relating to the Series A Preferred Stock as exhibits to our Annual
Report on Form 10-K. You should read our Restated Certificate of Incorporation
and our By-Laws and the Certificate of Designation relating to the Series A
Preferred Stock for additional information before you purchase any of our Common
Stock.
As of January 1, 1999, our authorized capital stock was 518,500,000 shares.
Those shares consisted of: (a) 500,000,000 shares of Common Stock, par value
$.01 per share; (b) 10,000,000 shares of Preferred Stock, par value $.01 per
share; and (c) 8,500,000 shares of Class R Convertible Common Stock, par value
$.01 per share. As of January 1, 1999, there were 307,868,632 shares of Common
Stock, no shares of Preferred Stock and no shares of Class R Convertible Common
Stock outstanding.
Common Stock
Subject to the senior rights of Preferred Stock which may from time to time
be outstanding, holders of Common Stock are entitled to receive dividends
declared by the Board of Directors out of funds legally available for their
payment. Upon dissolution and liquidation of our business, holders of Common
Stock are entitled to a ratable share of our net assets remaining after payment
to the holders of the Preferred Stock of the full preferential amounts they are
entitled to. All outstanding shares of Common Stock are fully paid and
nonassessable.
The holders of Common Stock are entitled to one vote per share for the
election of Directors and on all other matters submitted to a vote of
stockholders. Holders of Common Stock are not entitled to cumulative voting for
the election of Directors. They are not entitled to preemptive rights.
The transfer agent and registrar for the Common Stock is Norwest Bank
Minnesota, N.A.
Preferred Stock
The Preferred Stock has priority over the Common Stock with respect to
dividends and to other distributions, including the distribution of assets upon
liquidation. The Board of Directors is authorized to fix and determine the
terms, limitations and relative rights and preferences of the Preferred Stock,
to establish series of Preferred Stock and to fix and determine the variations
as among series. The Board of Directors without stockholder approval could issue
Preferred Stock with voting and conversion rights which could adversely affect
the voting power of the holders of Common Stock. The Board of Directors has
designated 500,000 shares of Series A Junior Participating Preferred Stock
("Participating Preferred Stock"). Participating Preferred Stock will be issued
in units consisting of one one-thousandth of a share (the "Units") of
Participating Preferred Stock. Participating Preferred Stock is on a parity with
the Common Stock with respect to dividends and to other distributions, including
the distribution of assets on liquidation. Quarterly dividends per Unit equal
the amount of the quarterly dividend paid per share of Common Stock, when, as
and if declared by the Board of Directors. The holders of Units are entitled to
one vote per Unit, voting together with the Common Stock on all matters
submitted to the stockholders. As of the date of this Prospectus, there are no
outstanding shares of Preferred Stock.
Anti-Takeover Provisions
We currently have provisions in our Restated Certificate of Incorporation
and By-Laws that could have an "anti-takeover" effect. The provisions in the
Restated Certificate of Incorporation include:
o a classified Board of Directors;
o a prohibition on our stockholders taking action by written consent;
<PAGE>
o the requirement that special meetings of stockholders be called only by the
Board of Directors or the Chairman of the Board; and
o the requirement of the affirmative vote of at least 66-2/3% of our
outstanding shares of stock entitled to vote thereon to adopt, repeal,
alter, amend or rescind our By-Laws.
The By-Laws contain specific procedural requirements for the nomination of
directors and the introduction of business by a stockholder of record at an
annual meeting of stockholders where such business is not specified in the
notice of meeting or brought by or at the discretion of the Board of Directors.
In addition to these provisions, the Board of Directors has adopted a
stockholder's rights plan, under which rights were distributed in a dividend.
These rights entitle the holder to acquire Units of Participating Preferred
Stock, which is exercisable upon the occurrence of certain events, including the
acquisition by a person or group of a specified percentage of the Common Stock.
PLAN OF DISTRIBUTION
The securities offered by this Prospectus may, upon compliance with
applicable "Blue Sky" laws, be sold from time to time to purchasers directly by
the selling stockholders or, to the extent permitted by the GeoNet Registration
Rights Agreement, by certain transferees or successors in interest to the former
GeoNet Communications, Inc. shareholders, or in negotiated transactions and in
the over-the-counter market through the Nasdaq National Market. The shares of
Common Stock may be sold by one or more of the following means: o a block trade
in which the broker or dealer so engaged will attempt to sell the shares of
Common Stock as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this Prospectus;
o ordinary brokerage transactions in which the broker solicits purchasers;
o in connection with short sales or the writing of call options, in hedging
transactions and in settlement of other transactions in standardized or
over-the-counter options; and
o direct sales to one or more purchasers.
In addition, any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act of 1933, as amended (the
"Securities Act"), may be sold under Rule 144 rather than pursuant to this
Prospectus.
Alternatively, the selling stockholders may from time to time offer the
securities offered by this Prospectus through underwriters, dealers or agents,
who may receive compensation in the form of underwriting discounts, concessions
of commissions from the selling stockholders and/or the purchasers of securities
for whom they may act as agents.
The selling stockholders and any underwriters, dealers or agents that
participate in the distribution of securities offered by this Prospectus may be
deemed to be underwriters, and any profit on the sale of such securities by them
and any discounts, commissions or concessions received by any such underwriters,
dealers or agents might be deemed to be underwriting discounts and commissions
under the Securities Act. At the time a particular underwritten offer of
securities is made, to the extent required, a supplement to this Prospectus will
be distributed which will set forth the aggregate amount of securities being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, and discounts, commissions and other items
constituting compensation from the selling stockholders and any discounts,
commissions or concessions allowed or reallowed or paid to dealers.
<PAGE>
The securities offered by this Prospectus may be sold from time to time in
one or more transactions at market prices prevailing at the time of sale, at a
fixed offering price, which may be changed, at varying prices determined at the
time of sale or at negotiated prices.
The selling stockholders will pay the commissions and discounts of
underwriters, dealers or agents, if any, incurred in connection with the sale of
the shares of Common Stock. Pursuant to the terms of the Registration Rights
Agreements, we have agreed to pay all expenses incident to the offering and sale
of the shares of Common Stock except for any commissions and discounts as
described above. We have agreed to indemnify the selling stockholders and each
underwriter, if any, and person controlling any underwriter, against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
Willkie Farr & Gallagher will issue an opinion for us about the legality of
the offered shares of Common Stock.
EXPERTS
The consolidated balance sheets of Level 3 Communications, Inc. as of
December 28, 1996 and December 27, 1997, and the related statements of earnings,
changes in stockholders' equity, and cash flows for each of three years in the
period ended December 27, 1997, as well as the consolidated balance sheets of
RCN Corporation and Subsidiaries as of December 31, 1996 and 1997 and the
related statements of operations, changes in stockholders' equity, and cash
flows for each of the three years in the period ended December 31, 1997, as well
as the balance sheets of Kiewit Construction & Mining Group, a business group of
Peter Kiewit Sons', Inc., as of December 28, 1996 and December 27, 1997 and the
related statements of earnings, changes in stockholders' equity, and cash flows
for each of the three years in the period ended December 27, 1997, as well as
the consolidated balance sheets of the Diversified Group, a business group of
Peter Kiewit Sons', Inc. as of December 28, 1996 and December 27, 1997 and the
related statements of earnings, changes in stockholders' equity, and cash flows
for each of the three years in the period ended December 27, 1997, incorporated
by reference in this registration statement, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offering of the Securities are as follows:
Securities Act Registration Fee........................ $ 60,754
---------
Printing and Engraving Expenses........................ $ 5,000*
----------
Legal Fees and Expenses................................ $ 30,000*
----------
Accounting Fees and Expenses........................... $ 15,000*
----------
Miscellaneous.......................................... $ 9,246*
----------
Total............................................. $ 120,000*
========
* Estimated and subject to future contingencies.
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a
Delaware corporation to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. A
corporation may, in advance of the final action of any civil, criminal,
administrative or investigative action, suit or proceeding, pay the expenses
(including attorneys' fees) incurred by any officer, director, employee or agent
in defending such action, provided that the director or officer undertakes to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. A corporation may indemnify such
person against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
A Delaware corporation may indemnify officers and directors in an action by
or in the right of the corporation to procure a judgment in its favor under the
same conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation.
Where an officer or director is successful on the merits or otherwise in the
defense of any action referred to above, the corporation must indemnify him or
her against the expenses (including attorneys' fees) which he or she actually
and reasonably incurred in connection therewith. The indemnification provided is
not deemed to be exclusive of any other rights to which an officer or director
may be entitled under any corporation's by-law, agreement, vote or otherwise.
In accordance with Section 145 of the DGCL, Article XI of the Company's
Restated Certificate of Incorporation (the "Certificate") and the Company's
By-Laws (the "By-Laws") provide that the Company shall indemnify each person who
is or was a director, officer or employee of the Company (including the heirs,
executors, administrators or estate of such person) or is or was serving at the
request of the Company as director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, to the fullest extent
permitted under subsections 145(a), (b), and (c) of the DGCL or any successor
statute. The indemnification
<PAGE>
provided by the Certificate and the By-Laws shall not be deemed exclusive of any
other rights to which any of those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. Expenses (including attorneys' fees) incurred
in defending a civil, criminal, administrative or investigative action, suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnified
person to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Company. The Certificate further
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the DGCL as so amended.
The By-Laws provide that the Company may purchase and maintain insurance on
behalf of its directors, officers, employees and agents against any liabilities
asserted against such persons arising out of such capacities.
ITEM 16. Exhibits.
5 -- Opinion of Willkie Farr & Gallagher
23.1 -- Consent of PricewaterhouseCoopers LLP
23.2 -- Consent of PricewaterhouseCoopers LLP
23.3 -- Consent of Willkie Farr & Gallagher (included in Exhibit 5)
24 -- Power of Attorney (included on the signature pages hereto)
ITEM 17. Undertakings.
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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 this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
<PAGE>
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that subparagraphs (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in registration statements
on Form S-3 or Form S-8 and the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
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
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(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.
The undersigned Registrant hereby further undertakes that, for the 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 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such 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 such Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in Omaha,
Nebraska, on February 3, 1999.
LEVEL 3 COMMUNICATIONS, INC.
By: /S/ R. Douglas Bradbury
Name: R. Douglas Bradbury
Title: Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
The undersigned officers and directors of Level 3 Communications, Inc.,
hereby severally constitute and appoint James Q. Crowe, R. Douglas Bradbury,
Thomas C. Stortz and Neil J. Eckstein, and each of them, attorneys-in-fact for
the undersigned, in any and all capacities, with the power of substitution, to
sign any amendments to this Registration Statement (including post-effective
amendments) and any subsequent registration statement for the same offering
which may be filed under Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange 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 and to all interests and purposes as he might or
could do in person, hereby ratifying and confirming all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment has been signed below by the following persons, in the capacities
and on the dates indicated:
Name Title Date
/S/ Walter Scott, Jr. Chairman of the Board February 3, 1999
- -------------------------
Walter Scott, Jr.
/S/ James Q. Crowe President, Chief Executive
- ------------------------- Officer and Director February 3, 1999
James Q. Crowe
Executive Vice President, Chief
/S/ R. Douglas Bradbury Financial Officer and Director February 3, 1999
- ------------------------- (principal financial officer)
R. Douglas Bradbury
/S/ Eric J. Mortensen Controller (principal accounting February 3, 1999
- ------------------------- officer)
Eric J. Mortensen
<PAGE>
/S/ William L. Grewcock Director February 3, 1999
- -------------------------
William L. Grewcock
/S/ Richard R. Jaros Director February 3, 1999
- -------------------------
Richard R. Jaros
/S/ Robert E. Julian Director February 3, 1999
- -------------------------
Robert E. Julian
/S/ David C. McCourt Director February 3, 1999
- -------------------------
David C. McCourt
/S/ Kenneth E. Stinson Director February 3, 1999
- -------------------------
Kenneth E. Stinson
/S/ Michael B. Yanney Director February 3, 1999
- -------------------------
Michael B. Yanney
<PAGE>
EXHIBIT INDEX
Sequential
-------------
Exhibit Description Page
Number
- ----------
5 -- Opinion of Willkie Farr & Gallagher
- ----------
- ----------
23.1 -- Consent of PricewaterhouseCoopers LLP
- ----------
- ----------
23.2 -- Consent of PricewaterhouseCoopers LLP
- ----------
- ----------
23.3 -- Consent of Willkie Farr & Gallagher (included in Exhibit 5)
- ----------
- ----------
24 -- Power of Attorney (included on the signature pages hereto)
- ----------
- ----------
<PAGE>
EXHIBIT 5
[Letterhead of Willkie Farr & Gallagher]
February 3, 1999
Level 3 Communications, Inc.
3555 Farnam Street
Omaha, Nebraska 68131
Ladies and Gentlemen:
We are delivering this opinion in connection with the Registration Statement on
Form S-3 (the "Registration Statement"), initially filed by Level 3
Communications, Inc. (the "Company") on the date hereof with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
with respect to 4,517,540 shares (the "Shares") of common stock, par value $.01
per share, of the Company ("Common Stock"). All such shares of Common Stock are
to be sold by certain selling stockholders of the Company (collectively, the
"Selling Stockholders").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments relating to the incorporation of the Company and to the
authorization and issuance of the Shares, and have made such investigations of
law, as we have deemed necessary and advisable. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic originals of all
documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing corporation
under the laws of the State of Delaware.
2. The Shares being sold on behalf of the Selling Stockholders constitute
duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the heading "Legal
Matters" in the Prospectus included in the Registration Statement. We do not
admit by giving this consent that we are in the category of persons whose
consent is required under Section 7 of the Act.
Very truly yours,
/s/ WILLKIE FARR & GALLAGHER
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Level 3 Communications, Inc. on Form S-3 of our reports dated March 30, 1998,
on our audits of the consolidated financial statements of Level 3
Communications, Inc., formerly Peter Kiewit Sons', Inc., the financial
statements and financial statement schedule of Kiewit Construction & Mining
Group, a business group of Peter Kiewit Sons', Inc., and the financial
statements of Diversified Group, a business group of 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 reports are included in the 1997 Annual
Report on Form 10 K/A of Level 3 Communications, Inc., formerly Peter Kiewit
Sons', Inc. We also consent to the reference to our Firm under the caption
"Experts."
PRICEWATERHOUSECOOPERS LLP
Omaha, Nebraska
February 3, 1999 /S/ PRICEWATERHOUSECOOPERS LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Level 3 Communications, Inc. on Form S-3 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 1997 Annual Report on Form 10 K/A of Level 3 Communications,
Inc., formerly Peter Kiewit Sons', Inc. We also consent to the reference to our
firm under the caption "Experts."
PRICEWATERHOUSECOOPERS LLP
Philadelphia, Pennsylvania
February 3, 1999 /S/ PRICEWATERHOUSECOOPERS LLP
