Exhibit 10.1
EXECUTION COPY
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated as of January 11, 2007, by and among SOUTHEASTERN
ASSET MANAGEMENT, INC., a Tennessee corporation ("Southeastern") on behalf of
discretionary investment accounts, and Legg Mason Opportunity Trust ("Legg
Mason"), a series of Legg Mason Investment Trust, Inc. (each an "Investor" and
together the "Investors"), and LEVEL 3 COMMUNICATIONS, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Investors have either full investment discretion with respect
to the Notes (as defined below) or proper authorization from the Beneficial
Owner (as defined below) of the Notes, as the case may be; and
WHEREAS, the parties desire that the Company acquire, and the Investors
deliver to the Company, the Notes in exchange for the Company's issuance to the
Investors and in the case of Southeastern, on behalf of its discretionary or
non-discretionary, as the case may be, investment account clients (the
"Clients"), shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company, in each case upon the terms and subject to the
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises,
and for other good and valuable consideration, the parties hereby agree as
follows:
SECTION 1. EXCHANGE.
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1.1. Definitions. As used in this Agreement the following terms have the
following meanings:
(a) "Additional Notes" shall mean the Company's 10% Convertible Senior
Notes due 2011 (CUSIP# 52729N BE 9) other than the Notes;
(b) "Adjustment Amount" shall mean, with respect to any Investor and any
acquisition of Additional Notes by the Company, the product of (A) the excess of
the premium (per $1,000 principal amount of Additional Notes) delivered by the
Company to acquire such Additional Notes over the Investor Premium then in
effect, (B) the principal amount of Notes delivered by such Investor under this
Agreement and (C) 0.001;
(c) "Adjustment Amount Shares" shall mean, with respect to any Investor and
any acquisition of Additional Notes by the Company, the number of shares of
Common Stock equal to such Investor's Adjustment Amount divided by the Company
Stock Price as of the date of the Company's acquisition of such Additional
Notes;
(d) "Affiliate" shall mean, with respect to any Person, any other Person
controlling, controlled by or under direct or indirect common control with such
Person. For the purposes of this definition "control," when used with respect to
any specified Person, shall mean
the power to direct the management and policies of such Person, directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
(e) "Beneficially Own" with respect to any securities shall mean having
"beneficial ownership" of such securities (as determined pursuant to Rule 13d-3
under the 1934 Act (as defined below), as in effect on the date hereof);
provided, however, that a Person will be deemed to beneficially own (and have
beneficial ownership of) all securities that such Person has the right to
acquire, whether such right is exercisable immediately or with the passage of
time or the satisfaction of conditions. The terms "Beneficial Ownership" and
"Beneficial Owner" have correlative meanings;
(f) "Company Stock Price" shall mean, as of any date, the volume-weighted
sales price per share taken to four decimal places of the Common Stock on the
Nasdaq National Market for the consecutive period beginning at 9:30 am New York
Time ("NYT") on the thirteenth trading day immediately preceding such date and
concluding at 4:00 pm NYT on the third trading day immediately preceding such
date, as calculated by Bloomberg Financial LP under the function "LVLT Equity
AQR";
(g) "Group" shall mean any group of Persons who, with respect to those
acquiring, holding, voting or disposing of Voting Securities would, assuming
ownership of the requisite percentage thereof, be required under Section 13(d)
of the 1934 Act to file a statement on Schedule 13D with the Securities and
Exchange Commission as a "person" within the meaning of Section 13(d)(3) of the
1934 Act, or who would be considered a "person" for purposes of Section 13(g)(3)
of the 1934 Act;
(h) "Investor Premium" means $295 per $1,000 principal amount of Additional
Notes acquired by the Company; provided that following any instance in which the
Company becomes obligated under Section 1.3 to deliver additional consideration
to the Investors as a result of the Company's acquisition of Additional Notes,
the Investor Premium shall be increased to the premium per $1,000 principal
amount of Additional Notes delivered by the Company to the Person other than the
Investors that resulted in such obligation to deliver additional consideration
(which premium shall be determined by the Company in good faith);
(i) "Notes" shall mean the Company's 10% Convertible Senior Notes due 2011
(CUSIP# 52729N BE 9), which were issued pursuant to an effective registration
statement under the 1933 Act (as defined below) and are being exchanged by the
Investors pursuant to this Agreement in the aggregate principal amounts set
forth on Schedule I hereto;
(j) "Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, governmental
entity, unincorporated association or joint venture;
(k) "Shares" shall mean the shares of Common Stock issued to the Investors
pursuant to the terms of this Agreement which shall be calculated as 326.77
shares of Common Stock per each $1,000 principal amount of the Notes; and
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(l) "Voting Securities" shall mean the shares of the Common Stock and any
other capital stock or equity securities of the Company having the general
voting power under ordinary circumstances to elect members of the board of
directors of the Company, and any other securities which are convertible into,
or exchangeable for, Voting Securities.
1.2. Exchange by the Company.
(a) Subject to the terms set forth in this Agreement and in reliance upon
the representations and warranties set forth below, on the Closing Date (as
defined herein) the Company shall acquire from each Investor (in the case of
Southeastern, on behalf of its respective Clients), and each Investor (in the
case of Southeastern, on behalf of its respective Clients) shall transfer,
assign and deliver to the Company, the aggregate principal amount of Notes set
forth opposite the name of such Investor on Schedule I hereto, free and clear of
any liens, claims, charges, security interest or other legal or equitable
encumbrances, limitations or restrictions (collectively, "Liens"), in exchange
for the Company's issuance to such Investor (in the case of Southeastern, on
behalf of its respective Clients) of the number of Shares set forth opposite the
name of such Investor on Schedule I hereto. On the Closing Date, such exchange
shall be effected by each Investor causing each record holder of the Notes set
forth opposite such Investors name on Schedule I hereto to deliver such Notes to
the Company or its designee (duly endorsed or otherwise in form sufficient for
transfer), against delivery by or on behalf of the Company to each Investor the
number of Shares set forth opposite the name of such Investor on Schedule I
hereto.
(b) No additional consideration for any purpose shall be due to the
Investors at Closing other than the Shares plus an amount in cash equal to the
accrued and unpaid interest on the Notes transferred by such Investor under this
Agreement from the last interest payment date for the Notes to, but not
including the Closing Date. All deliveries at the Closing shall be accomplished
pursuant to the delivery instructions to be provided by each Investor no later
than 5:00 P.M. New York time on Friday, January 12, 2007, substantially in the
form outlined on Schedule I hereto.
1.3. Adjustment to the Exchange Ratio. If, within 90 days following the
date hereof, the Company acquires any Notes from any Person other than the
Investors for a premium (which premium shall be determined by the Company in
good faith and shall also include the value of the consideration representing
interest which the Company shall not be obligated to pay on such Notes as a
result of acquiring such Notes) that is greater than the Investor Premium in
effect at that time, the Company shall within 10 business days after such
acquisition of Notes from such other Person, deliver to each Investor such
Investor's Adjustment Amount Shares with respect to such acquisition of
Additional Notes by the Company. Notwithstanding anything in this Agreement to
the contrary, consideration representing shares into which Notes are convertible
shall not constitute a premium.
1.4. Closing. The closing of the exchange of the Shares for the Notes (the
"Closing") shall take place at the offices of the Company at 1025 Eldorado
Boulevard, Broomfield, Colorado 80021 on Thursday, January 18, 2007 at 10:00
A.M., New York time, or on such other date, and at such other place and time, as
the parties hereto shall mutually agree (such date, the "Closing Date").
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1.5. Section 3(a)(9). The parties hereto acknowledge and agree that the
Shares being issued hereunder have not been registered under the Securities Act
of 1933, as amended (the "1933 Act") or under any applicable state securities
laws and that the issuance of the Shares, assuming that the representations and
warranties of the parties are true and correct is exempt from registration under
the 1933 Act pursuant to Section 3(a)(9) thereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE INVESTORS.
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Each Investor, severally for itself and not jointly with the other
Investors (in the case of Southeastern, for itself (unless otherwise indicated))
hereby represents and warrants to the Company on the date hereof and on the
Closing Date as follows:
2.1. Authorization and Validity of Agreement. Such Investor has all
requisite power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
performance of the obligations of such Investor hereunder have been duly
authorized, and no other proceedings on the part of such Investor (in the case
of Southeastern, on its part and on the part of its Clients) are necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed by such Investor and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms.
2.2. Consents and Approvals. No consent, waiver, authorization or approval
of any governmental or regulatory authority, domestic or foreign, or of any
other Person, firm or corporation, nor any declaration to or filing or
registration with any such governmental or regulatory authority is required in
connection with such Investor's execution and delivery of this Agreement or the
performance by such Investor of such Investor's obligations hereunder, except
for such consents, the failure of which to obtain would not be reasonably
expected to have a material adverse effect on the ability of the Investor to
consummate the transactions contemplated hereby or would result in a Lien on the
Notes transferred by such Investor pursuant to this Agreement.
2.3. Title to Notes. Such Investor has full investment discretion with
respect to the Notes set forth opposite the name of such Investor on Schedule I
hereto or full authority to transfer such Notes, as the case may be, and it (or
in the case of Southeastern, its Clients) have valid and marketable title
thereto, free and clear of any Liens, and such Notes will be transferred to the
Company free and clear of any Liens.
2.4. Status of Note Holder.
(a) Sophisticated Party; Authority from Clients. Such Investor is a
sophisticated investor and has relied on its own independent investigation and
not on any information or representations or warranties made by the Company
(other than the representations and warranties of the Company contained in
Section 3 hereof and the filings made by the Company pursuant to the Securities
Exchange Act of 1934 (the "1934 Act") in determining to execute and deliver this
Agreement. In the case of Southeastern, each of its Clients is an institutional
"accredited investor" as defined in Rule 501 under the 1933 Act. Such Investor
has full discretionary or other valid authority to enter into the transaction
contemplated
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by this Agreement (in the case of Southeastern, on behalf of its respective
Clients) and no further authorization or consent is required (in the case of
Southeastern, or from its Clients) to enter into this Agreement or to consummate
the transactions contemplated hereby, except for such consents, the failure of
which to obtain would not be reasonably expected to have a material adverse
effect on the ability of such Investor to consummate the transactions
contemplated hereby or would result in a Lien on the Notes transferred by such
Investor pursuant to this Agreement.
(b) Group. Such Investor together with the other Investors do not
constitute a Group. Such Investor hereby agrees that such Investor shall not
take any actions such that it and the other Investor may be deemed to be a
Group. In the case of Southeastern, after giving effect to the transactions
contemplated under this Agreement, (i) Southeastern together with its "ultimate
parent entity" (as defined by 16 C.F.R. ss.801.1(a)(3)) and all entities
included within such "ultimate parent entity" will Beneficially Own less than
thirty-five percent (35%) of the Company's outstanding Common Stock, (ii) each
Client of Southeastern that is an institutional investor together with its
"ultimate parent entity" (as defined by 16 C.F.R. ss.801.1(a)(3)) and all
entities included within such "ultimate parent entity" will Beneficially Own no
more than fifteen percent (15%) of the Company's outstanding Common Stock and
(iii) each Client of Southeastern that is not an institutional investor together
with its "ultimate parent entity" (as defined by 16 C.F.R. ss.801.1(a)(3)) and
all entities included within such "ultimate parent entity" will Beneficially Own
no more than ten percent (10%) of the Company's outstanding Common Stock. In the
case of Legg Mason, after giving effect to the transactions contemplated under
this Agreement, Legg Mason together with its "ultimate parent entity" (as
defined by 16 C.F.R. ss.801.1(a)(3)) and all entities included within such
"ultimate parent entity" will Beneficially Own less than fifteen percent (15%)
of the Company's outstanding Common Stock. Such Investor (in the case of
Southeastern, each Client), or its "ultimate parent entity" (as defined by 16
C.F.R. ss.801.1(a)(3)), if any, is a different "acquiring person" (as defined by
16 C.F.R. ss.801.2(a)) from the other Investor (in the case of Southeastern, the
other Investor and the other Clients).
2.5. Company Excluded Information. Such Investor acknowledges and agrees
that the Company possesses material information not generally known by the
public or by the Investor regarding the Company, its business, its condition
(financial or otherwise) and its prospects (collectively, the "Company Excluded
Information"), and such Investor agrees that the Company shall have no liability
to such Investor to the extent such Investor incurs or otherwise suffers any
liability, loss, expense, cost or damage arising out of or relating to the
non-disclosure of the Company Excluded Information; provided, that the foregoing
limitation of liability shall not in any way limit the liability of the Company
for any breach of its representations and warranties hereunder.
2.6. Investment. Such Investor is acquiring the Shares for its own account
(in the case of Southeastern, on behalf of its Clients under full discretionary
or other valid authority from such Clients) solely for the purpose of investment
(as defined by 16 C.F.R. ss.801.1(i)(1)) and not with a view to, or for sale in
connection with any distribution of the Shares, but subject, nevertheless, to
any requirement of law that the disposition of such Investor's property shall at
all times be within such Investor's control. Such Investor (in the case of each
of Southeastern, it and, to its knowledge, its respective Clients) has no
present agreement, undertaking,
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arrangement, obligation or commitment providing for the disposition of the
Shares received by such Investor pursuant to this Agreement.
2.7. No Manipulation of Stock. Such Investor (in the case of each of
Southeastern, it and, to its knowledge, its respective Clients) has not taken,
in violation of applicable law, any action designed to or that might reasonably
be expected to cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the transactions contemplated hereby or the sale
or resale of the shares of Common Stock.
2.8. Accuracy of Information Supplied for Registration Statement. In the
case of Southeastern, the information regarding such Investor and its Affiliates
supplied or to be supplied by it in writing specifically for inclusion or
incorporation by reference into that certain registration statement referred to
in Section 4.2 herein will not, as of the date of such registration statement,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
2.9. Investment Company Act.
(a) In the case of Southeastern, the Board of Directors of Longleaf
Partners Fund, including a majority of the directors who are not "interested
persons" (as that term is defined in the Investment Company Act of 1940, as
amended (the "1940 Act")) of such Longleaf Partners Fund, have found that any
interest of such fund's investment adviser in the transactions contemplated by
this Agreement is not "material" within the meaning of Rule 17a-6 under the 1940
Act (the "Rule"), and have recorded or shall record the basis for that finding
in the minutes of the meeting of its Board of Directors, and to the best of such
Investor's knowledge no other Person is a party to the transactions contemplated
by this Agreement or has a direct or indirect Financial Interest (as defined in
the Rule) in a party to such transactions other than Longleaf Partners Fund that
would cause the exemption afforded by the Rule in respect of Longleaf Partners
Fund's participation to be unavailable.
(b) In the case of Legg Mason, the Board of Directors of Legg Mason,
including a majority of the directors who are not "interested persons" (as that
term is defined in the 1940 Act) of Legg Mason, have found that any interest of
such fund's investment adviser in the transactions contemplated by this
Agreement is not "material" within the meaning of the Rule, and have recorded or
shall record the basis for that finding in the minutes of the meeting of its
Board of Directors, and to the best of such Investor's knowledge no other Person
is a party to the transactions contemplated by this Agreement or has a direct or
indirect Financial Interest (as defined in the Rule) in a party to such
transactions other than Legg Mason that would cause the exemption afforded by
the Rule in respect of Legg Mason's participation to be unavailable.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company hereby represents and warrants to each of the Investors on the
date hereof and on the Closing Date as follows:
3.1. Authorization and Validity of Agreement. The Company has all corporate
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
performance of the obligations of the Company
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hereunder have been duly authorized, and no other proceedings on the part of the
Company are necessary to authorize such execution, delivery and performance.
This Agreement has been duly executed by the Company and constitutes its valid
and binding obligation, enforceable against it in accordance with its terms.
3.2. Consents and Approvals. No consent, waiver, authorization or approval
of any governmental or regulatory authority, domestic or foreign, or of any
other Person, firm or corporation, nor any declaration to or filing or
registration with any such governmental or regulatory authority is required in
connection with the Company's execution and delivery of this Agreement or the
performance by the Company of the Company's obligations hereunder, except for
such consents, the failure of which to obtain would not be reasonably expected
to have a material adverse effect on the ability of the Company to consummate
the transactions contemplated hereby.
3.3. Issuance of Shares. Upon issuance in exchange for the Notes being
delivered to the Company by the Investors, the Shares will be, duly authorized,
validly issued, fully paid and nonassessable. The Shares will be issued at the
Closing without any restrictive legend, and assuming the accuracy of the
representations and warranties of the Investors, are freely tradable (other than
by Affiliates of the Company) under the 1933 Act. The Shares will be issued at
Closing free and clear of any Liens.
3.4. Accuracy of Information. The filings made by the Company since January
1, 2006 pursuant to the 1934 Act (as modified or supplemented by other
information so filed) did not when filed contain any material misstatement of
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information
contained in any such filings, the Company represents only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time.
3.5. Southeastern Standstill. The Board of Directors of the Company has
determined that Section 5.6 of that certain Securities Purchase Agreement, dated
as of February 18, 2005, by and among the Company and each of the investors
named in Exhibit A thereto shall not be applicable to the transactions
contemplated by this Agreement with respect to Southeastern; provided that such
Section 5.6 otherwise remains in full force and effect.
SECTION 4. COVENANTS OF THE PARTIES.
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4.1. Further Assurances of the Investors. Each Investor shall, at any time
and from time to time after the date hereof, upon the request of the Company and
at the expense of the Investor forthwith, execute and deliver such further
instruments of assignment, transfer, conveyance, endorsement, direction or
authorization and other documents as the Company may reasonably request to
perfect title of the Company and its successors and assigns to the Notes or
otherwise to effectuate the purposes of this Agreement.
4.2. Further Assurances of the Company. The Company shall, at any time and
from time to time after the date hereof, upon the request of the Investors and
at the expense of the Company forthwith, execute and deliver such further
instruments of assignment, transfer,
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conveyance, endorsement, direction or authorization and other documents as the
Investors may reasonably request to perfect title of the Investors and their
successors and assigns to the Shares or otherwise to effectuate the purposes of
this Agreement.
4.3. Agreement Not to Sell. Each Investor (in the case of Southeastern, on
behalf of itself and its Clients) agrees that, for the period expiring thirty
(30) days following the Closing Date, neither Investor nor the Client shall
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which is designed to result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise) by the Investor or the Clients or any Affiliate of the Investor or
the Clients or any Person in privity with either the Investor or the Clients or
any Affiliate of either the Purchase or the Clients) directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the 1934 Act, any of the
Shares acquired under the terms of this Agreement or publicly announce an
intention to effect any such transaction.
4.4. Registration.
(a) In the event that Southeastern is deemed an Affiliate of the Company,
the Company shall use reasonable best efforts to prepare and file with the
Securities and Exchange Commission ("SEC") within 15 days following the receipt
by the Company of the written request of Southeastern, a registration statement
on Form S-3 under Rule 415 of the 1933 Act to enable the resale of the
Registrable Securities (as defined below) by Southeastern, from time to time, in
compliance with the 1933 Act (the "Resale Registration Statement"). The Company
shall use reasonable best efforts to cause the Resale Registration Statement to
become effective as promptly as practicable after filing. The Company shall use
reasonable best efforts to prepare and file with the SEC such amendments and
supplements to the Resale Registration Statement and the prospectus used in
connection therewith (the "Resale Prospectus") as may be necessary to keep the
Resale Registration Statement effective and free from any material misstatement
or omission to state a material fact. Notwithstanding the foregoing, the Company
shall not be required to keep the Resale Registration Statement in effect if the
Company shall have received an opinion of counsel reasonably satisfactory to the
Company and Southeastern that Southeastern is not an Affiliate of the Company.
"Registrable Securities" shall mean the Shares issued pursuant to this Agreement
and held by the Clients of Southeastern at the time of the Company's filing of
the Resale Registration Statement and over which securities Southeastern has
discretionary authority. The Company shall bear all expenses in connection with
the Company's registration of the Registrable Securities pursuant to this
Section 4.4, provided, however, that Southeastern shall bear the cost of all
underwriting discounts and selling commissions and similar fees applicable to
the sale of the Registrable Securities and fees and expenses of its legal
counsel and all transfer taxes.
(b) In the event (i) of any request by the SEC or any other federal or
state governmental authority during the period of effectiveness of the Resale
Registration Statement for amendments or supplements to a Resale Registration
Statement or related prospectus or for additional information; (ii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Resale Registration Statement or
the
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initiation of any proceedings for that purpose; (iii) of any event or
circumstance not otherwise covered by clause (iv) below which, upon the advice
of its counsel, necessitates the making of any changes in the Resale
Registration Statement or Resale Prospectus, or any document incorporated or
deemed to be incorporated therein by reference, so that, in the case of the
Resale Registration Statement, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Resale Prospectus, it will not contain any untrue statement of a
material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (iv) the Company
determines in good faith that offers and sales pursuant to the Resale
Registration Statement should not be made by reason of the presence of material
undisclosed circumstances or developments with respect to which the disclosure
that would be required in such a Resale Registration Statement or related Resale
Prospectus, is reasonably likely to have a seriously detrimental effect on the
Company, then the Company shall deliver a certificate in writing to the
Southeastern (the "Suspension Notice") to the effect of the foregoing and, upon
receipt of such Suspension Notice, Southeastern will refrain from selling any
Registrable Securities pursuant to the Resale Registration Statement (a
"Suspension") until it receives copies of a supplemented or amended Resale
Prospectus prepared and filed by the Company, or until it is advised in writing
by the Company that the current Resale Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in any such Resale Prospectus. In the event of any
Suspension, the Company will use reasonable best efforts to cause the use of the
Resale Prospectus so suspended to be resumed as soon as reasonably practicable
after the delivery of a Suspension Notice to Southeastern.
(c) Notwithstanding the foregoing paragraphs of this Section 4.4, no
Suspension under clause (v) of Section 4.4(b) shall continue for more than
forty-five (45) days and the Company shall not deliver more than one Suspension
Notice under such clause in any twelve-month period.
(d) Provided that a Suspension is not then in effect, Southeastern may sell
Registrable Securities under the Resale Registration Statement, provided, to the
extent required by applicable law, that it arranges for delivery of a current
Resale Prospectus to the transferee of such securities. Upon receipt of a
request therefor, the Company will provide an adequate number of current Resale
Prospectuses to Southeastern.
SECTION 5. CONDITIONS PRECEDENT.
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5.1. Conditions to the Obligation of the Investors to Consummate the
Closing. The several obligations of each Investor to consummate the transactions
to be consummated at the Closing, are subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties of the Company contained in Section
3 of this Agreement shall be true and correct in all material respects on the
date hereof and on the Closing Date as though made on the Closing Date (except
that those representations and warranties that address matters only as of a
particular date shall have been true and correct only on such date).
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(b) The Company shall have delivered the Shares deliverable to such
Investor.
(c) The transaction contemplated by this Agreement shall not be prohibited
or enjoined by any law or governmental or court order or regulation.
5.2. Conditions to the Obligation of the Company to Consummate the Closing.
The obligation of the Company to consummate the transactions to be consummated
at the Closing, is subject to the satisfaction of the following conditions
precedent:
(a) The representations and warranties of such Investor contained in
Section 2 of this Agreement shall be true and correct in all material respects
on the date hereof and on the Closing Date as though made on the Closing Date
(except that those representations and warranties that address matters only as
of a particular date shall have been true and correct only on such date).
(b) Each Investor shall have delivered the Notes set forth opposite its
name on Schedule I hereto.
(c) The transaction contemplated by this Agreement shall not be prohibited
or enjoined by any law or governmental or court order or regulation.
Each Investor's obligations under this Agreement shall be several and
independent from the obligations of each other Investor; provided, however,
that, notwithstanding anything in this Agreement to the contrary, the Company
shall not be obligated to consummate the transactions contemplated by this
Agreement unless the conditions set forth in Section 5.2 above is satisfied.
SECTION 6. MISCELLANEOUS.
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6.1. Successors and Assigns. No party hereto shall assign this Agreement or
any rights or obligations hereunder without the prior written consent of the
other party hereto and any such attempted assignment without such prior written
consent shall be void and of no force and effect. This Agreement shall inure to
the benefit of and shall be binding upon the successors and permitted assigns of
the parties hereto.
6.2. Governing Law. This Agreement shall be construed, performed and
enforced in accordance with, and governed by, the laws of the State of New York,
without giving effect to the principles of conflicts of laws thereof.
6.3. Expenses. Each of the parties hereto shall pay its own expenses in
connection with this Agreement and the transactions contemplated hereby,
including, without limitation, any legal and accounting fees, whether or not the
transactions contemplated hereby are consummated.
6.4. Severability. In the event that any part of this Agreement is declared
by any court or other judicial or administrative body to be null, void or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
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6.5. Notices. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
(i) on the date of service if served personally on the party to whom notice is
to be given; (ii) on the day of transmission if sent via facsimile transmission
to the facsimile number given below, and telephonic confirmation of receipt is
obtained promptly after completion of transmission; (iii) on the day after
delivery to Federal Express or similar overnight courier; or (iv) on the fifth
day after mailing, if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid and properly
addressed, to the party as follows:
If to Southeastern:
Southeastern Asset Management, Inc.
6410 Poplar Avenue
Suite 900
Memphis, TN 38119
Attn.: Andrew R. McCarroll, Esq.
Facsimile: (901) 818-5160
If to Legg Mason:
Legg Mason Opportunity Trust
100 Light Street
Baltimore, MD 21202
Attn.: General Counsel
Facsimile: (410) 454-5372
If to the Company:
Level 3 Communications, Inc.
1025 Eldorado Boulevard
Broomfield, Colorado 80021
Attn.: General Counsel
Facsimile: (720) 888-5619
Either party may change its address for the purpose of this Section by giving
the other party written notice of its new address in the manner set forth above.
6.6. Amendments; Waivers. This Agreement may be amended or modified, and
any of the terms, covenants, representations, warranties or conditions hereof
may be waived, only by a written instrument executed by the parties hereto, or
in the case of a waiver, by the party waiving compliance.
6.7. Parties in Interest. Nothing in this Agreement is intended to confer
any rights or remedies under or by reason of this Agreement on any Persons other
than parties hereto and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligations or
liability of any third Persons to the Investors or the
11
Company. No provision of this Agreement shall give any third Persons any right
of subrogation or action over or against the Investors or the Company.
6.8. Section and Paragraph Headings. The section and paragraph headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
6.9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
COMPANY: LEVEL 3 COMMUNICATIONS, INC.
By: /s/ Robin E. Grey
Name: Robin E. Grey
Title: Senior Vice President
INVESTORS: SOUTHEASTERN ASSET MANAGEMENT, INC., on behalf of
its investment advisory clients
By: /s/ Andrew R. McCarroll
Name: Andrew R. McCarroll
Title: Vice President and General Counsel
LEGG MASON OPPORTUNITY TRUST, a series of
Legg Mason Investment Trust, Inc.
By: /s/ Gregory Merz
Name: Gregory Merz
Title: Vice President
13
Schedule I
Form of Delivery Instructions
Note Delivery Instructions
Notes coming from the following
accounts and Delivered to DTC XXX
Investor CUSIP Sub Account DTC # DTC Name Principal Amount of Notes
-------- ----- ----------- ----- -------- -------------------------
Southeastern Asset
Management, Inc. $390,026,000
Stock Delivery Instructions
Common Stock coming from the Company's transfer agent and
Delivered to the following accounts via DWAC
Investor Sub Account DTC # DTC Name DWAC Reference Common Shares
-------- ----------- ----- -------- -------------- -------------
Southeastern Asset
Management, Inc. 127,448,764
Cash Wire Transfer Instructions
Schedule I
Form of Delivery Instructions
Note Delivery Instructions
Notes coming from the following
accounts and Delivered to DTC XXX
Investor CUSIP Sub Account DTC # DTC Name Principal Amount of Notes
-------- ----- ----------- ----- -------- -------------------------
Legg Mason
Opportunity Trust $100,000,000
Stock Delivery Instructions
Common Stock coming from the Company's transfer agent and
Delivered to the following accounts via DWAC
Investor Sub Account DTC # DTC Name DWAC Reference Common Shares
-------- ----------- ----- -------- -------------- -------------
Legg Mason
Opportunity Trust 32,677,000
Cash Wire Transfer Instructions