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
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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:
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(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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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IT IS SO ORDERED.
DATED: Aug 23, 2005
/s/ C. Vincent Phelps, Jr.
THE HONORABLE C. VINCENT PHELPS, JR.
DISTRICT COURT JUDGE
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