{"id":43577,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/securities-purchase-agreement-level-3-communications-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"securities-purchase-agreement-level-3-communications-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/securities-purchase-agreement-level-3-communications-inc.html","title":{"rendered":"Securities Purchase Agreement – Level 3 Communications Inc., Longleaf Partners Fund, Longleaf Partners Small-Cap Fund, Legg Mason Special Investment Trust Inc., Legg Mason Investment Trust Inc. and Berkshire Hathaway Inc."},"content":{"rendered":"\n This SECURITIES PURCHASE AGREEMENT (this \"Agreement\") is dated as of the\n ---------\n5th day of July 2002 by and among Level 3 Communications, Inc., a Delaware\ncorporation (the \"Company\"), and each of the investors named in EXHIBIT A\n ------- ---------\nattached hereto (each, an \"Investor\" and collectively, the \"Investors\").\n ---------\n\n W I T N E S S E T H:\n - - - - - - - - - -\n\n WHEREAS, the Company desires to issue and sell to each Investor pursuant to\nthis Agreement and the Registration Statement (as defined below), and each\nInvestor, severally, desires to purchase from the Company the aggregate\nprincipal amount of the Company's 9% Junior Convertible Subordinated Notes due\n2012 as is set forth opposite its respective name in EXHIBIT A hereto, which\n ---------\nNotes will be upon issuance convertible into authorized but unissued shares of\nthe Company's (i) Series B Convertible Preferred Stock, par value $.01 per share\n(the \"Preferred Stock\") or (ii) common stock, $.01 par value per share (the\n ---------------\n\"Common Stock\"); and\n ------------\n\n WHEREAS, the Company has authorized the issuance of up to 500,000 shares of\nits Preferred Stock, which shares will be upon issuance, convertible into\nauthorized but unissued shares of Common Stock;\n\n NOW THEREFORE, in consideration of the mutual agreements, representations,\nwarranties and covenants herein contained, the parties hereto agree as follows:\n\n 1. Definitions. As used in this Agreement, the following terms shall have\n -----------\nthe following respective meanings:\n\n 1.1. \"Affiliate\" shall mean, with respect to any Person, any other Person\n ---------\ncontrolling, controlled by or under direct or indirect common control with such\nPerson. For the purposes of this definition \"control,\" when used with respect to\nany specified Person, shall mean the power to direct the management and policies\nof such Person, directly or indirectly, whether through ownership of voting\nsecurities, by contract or otherwise; and the terms \"controlling\" and\n\"controlled\" shall have meanings correlative to the foregoing.\n\n 1.2. \"Disclosure Documents\" means the Company's Annual Report on Form 10-K\n --------------------\nfor the year ended December 31, 2001, as amended, the Company's Quarterly Report\non Form 10-Q for the quarter ended March 31, 2002, any Current Reports on Form\n8-K filed or furnished by the Company on or after December 31, 2001, the\nCompany's Schedule 14A Proxy Statement for its Annual Meeting of Stockholders,\ndated June 20, 2002, the Registration Statement and the Prospectus, together in\neach case with any documents incorporated by reference therein or exhibits\nthereto.\n\n 1.3. \"Exchange Act\" means the Securities Exchange Act of 1934 and all of\n ------------\nthe rules and regulations promulgated thereunder.\n\n 1.4. \"Material Adverse Effect\" means any change, event or occurrence which,\n -----------------------\nindividually or in the aggregate, has had a material adverse effect on, or a\nmaterial adverse change in, (i) the business, operations, financial condition or\nresults of operations of the\n\n\n\nCompany and its subsidiaries, taken as a whole, or (ii) the ability of the\nCompany to perform its obligations under this Agreement, in each case other than\nany change, event or occurrence (a) resulting from conditions in the United\nStates or foreign economies or securities markets in general or any change in\nthe Company's stock price, (b) resulting from conditions in the\ntelecommunications industry in general, except to the extent that the Company is\ndisproportionately affected thereby, (c) resulting from the public announcement\nof the transactions contemplated by this Agreement or (d) arising out of or\nresulting from actions of the Investors in connection with this Agreement.\n\n 1.5. \"Notes\" means one or more of the Company's 9% Junior Convertible\n -----\nSubordinated Notes due 2012 containing the same terms and conditions and with\nthe same conversion features as set forth in the form of note attached hereto as\nEXHIBIT B.\n---------\n\n 1.6. \"Person\" means an individual, partnership, corporation, limited\n ------\nliability company, business trust, joint stock company, trust, unincorporated\nassociation or joint venture.\n\n 1.7. \"Prospectus\" means the base prospectus included in the Registration\n ----------\nStatement together with the prospectus supplement relating to the Securities\nfirst filed with the SEC pursuant to Rule 424(b) under the Securities Act.\n\n\n 1.8. \"SEC\" shall mean the Securities and Exchange Commission.\n ---\n\n 1.9. \"Securities\" shall mean the Notes and shares of Preferred Stock and\n ----------\nCommon Stock issuable upon conversion of the Notes and upon conversion of the\nPreferred Stock.\n\n 1.10. \"Securities Act\" shall mean the Securities Act of 1933, as amended,\n --------------\nand all of the rules and regulations promulgated thereunder.\n\n 1.11. \"Trust Indenture Act\" means the Trust Indenture Act of 1939, as\n -------------------\namended and as in force as the date hereof.\n\n 2. Authorization, Purchase and Sale of the Notes.\n ----------------------------------------------\n\n 2.1. Authorization of Securities. The Company has, or on or before the\n ---------------------------\nClosing Date (as defined below) will have, (i) authorized the Notes, (ii)\nauthorized and created a series of its preferred stock consisting of 500,000\nshares of Preferred Stock, par value $.01 per share, designated as its \"Series B\nConvertible Preferred Stock,\" shares of which are issuable upon conversion of\nthe Notes and (iii) authorized the issuance of the shares of Common Stock\nissuable upon conversion of the Notes and upon conversion of the Preferred\nStock. The terms, limitations and relative rights and preferences of the\nPreferred Stock are set forth in a Certificate of Designations, Number,\nPreferences and Rights of Series B Convertible Preferred Stock of the Company,\nthe form of which is attached hereto as EXHIBIT C (the \"Certificate of\n --------- --------------\nDesignations\").\n------------\n\n 2.2. Purchase and Sale of the Notes.\n ------------------------------\n\n (a) Subject to and upon the terms and conditions set forth in this\nAgreement, at the Closing (as defined below), the Company shall issue and sell\nto each Investor, and each\n\n -2-\n\n\n\nInvestor, severally, shall purchase from the Company the aggregate principal\namount of Notes set forth opposite the name of such Investor under the heading\n\"Principal Amount of Notes to be Purchased\" on EXHIBIT A hereto, at a purchase\n ---------\nprice equal to the principal amount of Notes purchased.\n\n 2.3. Closing.\n -------\n\n (a) The closing (the \"Closing\") shall take place at the offices of Willkie\n -------\nFarr & Gallagher, 787 Seventh Avenue, New York, NY on July 8, 2002 or such other\ndate mutually agreed to by the Company and the Investors (the \"Closing Date\").\n ------------\nAt the Closing, each Investor shall make payment to the Company of the purchase\nprice set forth opposite such Investor's name on EXHIBIT A hereto under the\n ---------\ncaption \"Purchase Price Payable at the Closing\" by wire transfer to the Company\nof immediately available funds, against delivery to such Investor by the Company\nof one or more Note(s) in the principal amount as set forth opposite such\nInvestor's name on Exhibit A hereto.\n ---------\n\n 3. Representations and Warranties of the Company. Except as set forth in\n ---------------------------------------------\nthe Disclosure Documents, the Company hereby represents and warrants to each of\nthe Investors as follows:\n\n 3.1. Incorporation. The Company is a corporation duly organized, validly\n -------------\nexisting and in good standing under the laws of the State of Delaware and is\nqualified to do business in each jurisdiction in which the character of its\nproperties or the nature of its business requires such qualification, except\nwhere the failure to so qualify would not have a Material Adverse Effect. The\nCompany has all requisite corporate power and authority to carry on its business\nas now conducted.\n\n 3.2. Subsidiaries. Each subsidiary of the Company that is a corporation\n ------------\nhas been duly incorporated, is validly existing as a corporation in good\nstanding under the laws of the jurisdiction of its incorporation, has the\ncorporate power and authority to own its properties and to conduct its business\nand is duly registered, qualified and authorized to transact business and is in\ngood standing in each jurisdiction in which the conduct of its business or the\nnature of its properties requires such registration, qualification or\nauthorization, except where such failure to so qualify or register would not be\nreasonably likely to have a Material Adverse Effect.\n\n 3.3. Capitalization. As of the date of this Agreement, the authorized\n --------------\ncapital stock of the Company consists of 1,500,000,000 shares of Common Stock,\n8,500,000 shares of Class R Convertible Common Stock, par value $.01 per share\n(the \"Class R Common Stock\") and 10,000,000 shares of undesignated preferred\n --------------------\nstock, par value $.01 per share, of which 500,000 shares have been designated as\nSeries A Convertible Preferred Stock, par value $.01 per share (the \"Series A\n --------\nPreferred Stock\"). As of the date of this Agreement, there are no shares of\n---------------\nClass R Common Stock or Series A Preferred Stock issued and outstanding. All\noutstanding shares of Common Stock have been duly authorized, and have been\nvalidly issued, are fully paid and nonassessable.\n\n -3-\n\n\n\n 3.4. Authorization. All corporate action on the part of the Company, its\n -------------\nofficers, directors and stockholders necessary for the authorization of the\nNotes and the filing of the Certificate of Designations, the authorization,\nexecution, delivery and performance of this Agreement and the consummation of\nthe transactions contemplated herein has been taken. When executed and delivered\nby the Company, this Agreement shall constitute the legal, valid and binding\nobligation of the Company, enforceable against the Company in accordance with\nits terms, except as rights to indemnity and contribution may be limited by\nstate or federal securities laws or the public policy underlying such laws, and\nexcept as may be limited by bankruptcy, insolvency, reorganization or other laws\naffecting creditors' rights generally and by general equitable principles. The\nCompany has all requisite corporate power to enter into this Agreement and to\ncarry out and perform its obligations under the terms of this Agreement. At or\nprior to the Closing, the Company will have reserved for issuance the shares of\nPreferred Stock and Common Stock issuable upon conversion of the Notes and the\nPreferred Stock.\n\n 3.5. Valid Issuance.\n --------------\n\n (a) The Notes have been duly authorized and, when executed by the Company\nand authenticated by the Trustee (as defined below) in accordance with the terms\nof the Indenture (as defined below) and delivered to and paid for by the\nInvestors in accordance with the terms of this Agreement, will constitute the\nvalid and legally binding obligations of the Company entitled to the benefits\nprovided by the indenture dated as of September 20, 1999 (the \"Base Indenture\")\n --------------\nbetween the Company and IBJ Whitehall Bank and Trust Company, as Trustee, as\nsupplemented by the First Supplemental Indenture, dated as of September 20, 1999\n(the \"First Supplemental Indenture\") between the Company and IBJ Whitehall Bank\n ----------------------------\nand Trust Company, as Trustee, as further supplemented by the Second\nSupplemental Indenture, dated as of February 29, 2000 (the \"Second Supplemental\n -------------------\nIndenture\") between the Company and The Bank of New York (the successor trustee\n---------\nto IBJ Whitehall Bank and Trust Company), as Trustee, as further supplemented by\nthe Third Supplemental Indenture, to be dated as of the Closing Date (the \"Third\n -----\nSupplemental Indenture\" and together with the Second Supplemental Indenture, the\n----------------------\nFirst Supplemental Indenture and the Base Indenture, the \"Indenture\") between\n ---------\nthe Company and The Bank of New York (the successor trustee to IBJ Whitehall\nBank and Trust Company), as Trustee (the \"Trustee\"), under which they are to be\n -------\nissued. The Base Indenture will be substantially in the form filed as an exhibit\nto the Registration Statement; the Indenture has been duly authorized and duly\nqualified under the Trust Indenture Act and, when executed and delivered by the\nCompany and the Trustee, will constitute a valid and legally binding obligation\nof the Company, enforceable against the Company in accordance with its terms,\nexcept as rights to indemnity and contribution may be limited by state or\nfederal securities laws or the public policy underlying such laws, and except as\nmay be limited by bankruptcy, insolvency, reorganization or other laws affecting\ncreditors' rights generally and by general equitable principles; and the\nSecurities and the Indenture will conform to the descriptions thereof in the\nProspectus. The First Supplemental Indenture and the Second Supplemental\nIndenture relate solely to the respective securities issued thereunder and do\nnot amend the terms of the Base Indenture as it relates to the Notes.\n\n (b) Upon their issuance in accordance with the terms of the Notes, the\nshares of Preferred Stock or Common Stock issued upon conversion of the Notes\nand the Preferred\n\n -4-\n\n\n\nStock will be duly authorized, validly issued, fully paid and non-assessable\nshares of Preferred Stock or Common Stock, as the case may be, free of all\npreemptive or similar rights.\n\n\n (c) The Company's registration statement on Form S-3 (File No. 333-53914)\n(the \"Registration Statement\"), including the base prospectus relating to\n ----------------------\ncertain debt and equity securities to be offered from time to time by the\nCompany: (i) was prepared by the Company in conformity with the requirements of\nthe Securities Act and (ii) was declared effective by the SEC. The Company has\nat all times relevant to the offering of the Notes contemplated hereby complied\nwith the conditions for the use of Form S-3 and is eligible to use Form S-3.\nCopies of the Registration Statement, including any amendments thereto and the\nProspectus contained therein have heretofore been delivered by the Company to\nthe Investors. The Registration Statement is effective under the Securities Act\nand no post-effective amendment to the Registration Statement has been filed as\nof the date of this Agreement. The Company has prepared and delivered to the\nInvestors and will file with the SEC pursuant to Rule 424(b), no later than two\nbusiness days after the date hereof, a supplement to the base prospectus\nincluded in the Registration Statement relating to the Securities and the\noffering thereof in conformity with the requirements of the Securities Act.\n\n 3.6. Transferability. Assuming the accuracy of the Investors\n ---------------\nrepresentations and warranties in Sections 4.6 and 4.7 hereof and that such\nrepresentations and warranties shall remain accurate as of the date of any such\ntransfer, the Securities acquired by the Investors may be transferred by them\nwithout registration under the Securities Act.\n\n 3.7. Absence of Certain Changes. Since March 31, 2002, there has not been\n --------------------------\nany Material Adverse Effect.\n\n 3.8. Disclosure Documents. The information contained or incorporated by\n --------------------\nreference in the Disclosure Documents was true and correct in all material\nrespects as of the respective dates of the filing thereof with the SEC; and, as\nof such respective dates, the Disclosure Documents did not contain an untrue\nstatement of a material fact or omit to state a material fact required to be\nstated therein or necessary to make the statements therein, in light of the\ncircumstances under which they were made, not misleading, except to the extent\nupdated or superseded by any report subsequently filed by the Company with the\nSEC.\n\n 3.9. Consents. All consents, approvals, orders and authorizations required\n --------\non the part of the Company in connection with the execution, delivery or\nperformance of this Agreement and the consummation of the transactions\ncontemplated herein, other than (i) the filing of the Certificate of\nDesignations with the Secretary of State of the State of Delaware, have been\nobtained and will be effective as of the Closing Date, other than such filings\nrequired to be made after the Closing under applicable federal and state\nsecurities laws and (ii) other than any of the foregoing, the failure to make or\nobtain will not have a Material Adverse Effect.\n\n\n 3.10. No Conflict. The execution and delivery of this Agreement by the\n -----------\nCompany and the consummation of the transactions contemplated hereby will not\nconflict with or result in any violation of or default (with or without notice\nor lapse of time, or both) under, or give rise to a right of termination,\ncancellation or acceleration of any obligation or to a loss of a material\nbenefit under (i) any provision of the Certificate of Incorporation or By-laws\nof the\n\n -5-\n\n\n\nCompany or (ii) any agreement or instrument, permit, franchise, license,\njudgment, order, statute, law, ordinance, rule or regulations, applicable to the\nCompany or its properties or assets, except, in the case of clause (ii), as\nwould not, individually or in the aggregate, be reasonably expected to have a\nMaterial Adverse Effect.\n\n 3.11. No Manipulation of Stock. The Company has not taken, in violation of\n ------------------------\napplicable law, any action designed to or that might reasonably be expected to\ncause or result in stabilization or manipulation of the price of the Common\nStock to facilitate the transactions contemplated hereby or the sale or resale\nof the shares of Common Stock.\n\n 3.12. Company Not an \"Investment Company\". The Company is not, and\n -----------------------------------\nimmediately after receipt of payment for the Notes will not be, an \"investment\ncompany\" or an entity \"controlled\" by an \"investment company\" within the meaning\nof the Investment Company Act of 1940, as amended.\n\n 4. Representations and Warranties of Each Investor. Each Investor,\n -----------------------------------------------\nseverally for itself and not jointly with the other Investors, represents and\nwarrants to the Company as follows:\n\n 4.1. Organization. Such Investor, if it is a legal entity, is duly and\n ------------\nvalidly existing under the jurisdiction of its organization.\n\n 4.2. Authorization. All action on the part of such Investor necessary for\n -------------\nthe authorization, execution, delivery and performance of this Agreement and the\nconsummation of the transactions contemplated herein has been taken. This\nAgreement constitutes the legal, valid and binding obligation of such Investor,\nenforceable against such Investor in accordance with its terms, except as such\nmay be limited by bankruptcy, insolvency, reorganization or other laws affecting\ncreditors' rights generally and by general equitable principles. Such Investor\nhas all requisite power to enter into this Agreement and to carry out and\nperform its obligations under the terms of this Agreement.\n\n 4.3. No Conflict. The execution and delivery of this Agreement by such\n -----------\nInvestor and the consummation of the transactions contemplated hereby will not\nconflict with or result in any violation of or default by such Investor (with or\nwithout notice or lapse of time, or both) under, or give rise to a right of\ntermination, cancellation or acceleration of any obligation or to a loss of a\nmaterial benefit under (i) any provision of the organizational documents of such\nInvestor or (ii) any agreement or instrument, permit, franchise, license,\njudgment, order, statute, law, ordinance, rule or regulations, applicable to\nsuch Investor or its respective properties or assets, except, in the case of\nclause (ii), as would not, individually or in the aggregate, be reasonably\nexpected to have a material adverse effect (a) on such Investor or (b) on the\nability of such Investor to perform its obligations under this Agreement.\n\n 4.4. Consents. All consents, approvals, orders and authorizations required\n --------\non the part of such Investor in connection with the execution, delivery or\nperformance of this Agreement and the consummation of the transactions\ncontemplated herein have been obtained and will be effective as of the Closing\nDate.\n\n -6-\n\n\n\n 4.5. No Manipulation of Stock. Such Investors has not taken, in violation\n ------------------------\nof applicable law, any action designed to or that might reasonably be expected\nto cause or result in stabilization or manipulation of the price of the Common\nStock to facilitate the transactions contemplated hereby or the sale or resale\nof the shares of Common Stock.\n\n 4.6. Group; Affiliate. Such Investor together with the other Investors do\n ----------------\nnot constitute a \"group\" with the meaning of Section 13(d)(3) of the Exchange\nAct. Such Investor is not and, after giving effect to the sale and purchase of\nthe Notes contemplated by this Agreement, will not be an Affiliate of the\nCompany. Such Investor agrees that it shall not take any actions such that the\nInvestors may be deemed to be a \"group\" under Section 13(d)(3) of the Exchange\nAct. After giving effect to the sale and purchase of the Notes contemplated\nunder this Agreement, such Investor together with its Affiliates will\nbeneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)\nless than twenty percent (20%) of the Company's outstanding Common Stock.\n\n 4.7. Purchase Entirely for Own Account. Such Investor is acquiring the\n ---------------------------------\nNotes for its own account, and not with a view to, or for sale in connection\nwith any distribution of the Notes, but subject, nevertheless, to any\nrequirement of law that the disposition of such Investor's property shall at all\ntimes be within such Investor's control. Such Investor has no present agreement,\nundertaking, arrangement, obligation or commitment providing for the disposition\nof the Notes.\n\n 5. Covenants.\n ---------\n\n 5.1. Governmental Approvals. As soon as practicable after the execution of\n ----------------------\nthis Agreement, the Company and each Investor shall file all applications and\nreports and take such other action which is reasonably required to be taken or\nfiled with any governmental authority in connection with the transactions\ncontemplated by this Agreement. The Company and each Investor shall give all\nadditional notices to third parties and take other action reasonably required to\nbe or taken by it under any authorization, lease, note, mortgage, indenture,\nagreement or other instrument or any law, rule, regulation, demand or court or\nadministrative order in connection with the transactions contemplated by this\nAgreement.\n\n 5.2. Further Assurances. Each party agrees to cooperate with each other and\n ------------------\ntheir respective officers, employees, attorneys, accountants and other agents,\nand, generally, do such other acts and things in good faith as may be reasonable\nor appropriate to timely effectuate the intents and purposes of this Agreement\nand the consummation of the transactions contemplated hereby, including, but not\nlimited to, taking any action to facilitate the filing any document or the\ntaking of any action to assist the other parties hereto in complying with the\nterms of Section 5.1 hereof.\n\n 5.3. Registration. In the event an Investor becomes an Affiliate of the\n ------------\nCompany or is deemed an Affiliate of the Company, then such Investor shall be\nentitled to one demand registration right relating to the registration of the\nSecurities under the Securities Act on customary terms and conditions to be\nmutually agreed upon by the Company and such Investor. The Company shall bear\nall expenses in connection with the Company's registration of the Securities\npursuant to this Section 5.3, provided, however, that the Investors shall bear\n -------- -------\nthe cost\n\n -7-\n\n\n\nof all underwriting discounts and selling commissions and similar fees\napplicable to the sale of the Securities and fees and expenses of its legal\ncounsel and all transfer taxes.\n\n\n 5.4. Certificate of Designations. As soon as practicable, but in no event\n ---------------------------\nlater than 5 business days, after the execution of this Agreement, the Company\nshall file the Certificate of Designations with the Secretary of State of the\nState of Delaware, and deliver satisfactory evidence of such filing to the\nInvestors.\n\n 5.5. NASDAQ. Within three business days following the Closing Date, the\n ------\nCommon Stock issuable upon conversion of the Notes and the Preferred Stock shall\nhave been listed and admitted and authorized for trading, subject to official\nnotice of issuance, on the Nasdaq National Market.\n\n 6. Conditions Precedent.\n --------------------\n\n 6.1. Conditions to the Obligation of the Investors to Consummate the\n ---------------------------------------------------------------\nClosing.\n-------\nThe several obligations of each Investor to consummate the transactions\nto be consummated at the Closing, and to purchase and pay for the Notes being\npurchased by it at the Closing pursuant to this Agreement, are subject to the\nsatisfaction of the following conditions precedent:\n\n (a) The purchase of, and payment for, the Notes by each Investor shall not\nbe prohibited or enjoined by any law or governmental or court order or\nregulation.\n\n (b) No stop order suspending the effectiveness of the Registration\nStatement shall have been issued and no proceedings for that purpose shall have\nbeen instituted or threatened.\n\n (c) The Company and the Trustee shall have executed and delivered the Third\nSupplemental Indenture in the form attached hereto as Exhibit D and the Trustee\n ---------\nshall have executed and delivered a certificate of authentication with respect\nto the Notes.\n\n (d) Each Investor shall have received from the Company's counsel, Willkie\nFarr & Gallagher, an opinion substantially in the form attached hereto as\nExhibit E.\n---------\n\n 6.2. Conditions to the Obligation of the Company to Consummate the Closing.\n ---------------------------------------------------------------------\nThe obligation of the Company to consummate the transactions to be consummated\nat the Closing, and to issue and sell to each Investor the Notes to be purchased\nby it at the Closing pursuant to this Agreement, is subject to the satisfaction\nof the following conditions precedent:\n\n (a) Such Investor shall have paid the purchase price set forth opposite\nsuch Investor's name on Exhibit A hereto under the heading \"Purchase Price\nPayable at the Closing.\"\n\n (b) The sale of the Notes by the Company shall not be prohibited or\nenjoined by any law or governmental or court order or regulation.\n\n (c) No stop order suspending the effectiveness of the Registration\nStatement shall have been issued and no proceedings for that purpose shall have\nbeen instituted or threatened.\n\n -8-\n\n\n\n (d) The Company and the Trustee shall have executed and delivered the Third\nSupplemental Indenture in the form attached hereto as Exhibit D and the Trustee\nshall have executed and delivered a certificate of authentication with respect\nto the Notes.\n\n Each Investor's obligations under this Section 6.1 shall be several and\nindependent from the obligations of each other Investor; provided, however, that\nthe Company shall not be obligated to consummate the transactions contemplated\nby this Agreement unless the conditions set forth in this Section 6.2 have been\nsatisfied with respect to all of the Investors.\n\n 7. Termination.\n -----------\n\n 7.1. Conditions of Termination. Notwithstanding anything to the contrary\n -------------------------\ncontained herein, this Agreement may be terminated at any time before the\nClosing (a) by mutual consent of the Company and the Investors, or (b) by either\nthe Investors or the Company if the Closing shall not have occurred on or prior\nto July 31, 2002.\n\n 7.2. Effect of Termination. In the event of termination pursuant to Section\n ---------------------\n7.1 hereof, this Agreement shall become null and void and have no effect, with\nno liability on the part of the Company or the Investors, or their directors,\nofficers, agents or stockholders, with respect to this Agreement, except for the\nliability for any willful breach of this Agreement.\n\n 8. Miscellaneous Provisions.\n ------------------------\n\n 8.1. Public Statements or Releases. Neither the Company nor any Investor\n -----------------------------\nshall make any public announcement with respect to the existence or terms of\nthis Agreement or the transactions provided for herein without the prior\napproval of the other parties, which shall not be unreasonably withheld or\ndelayed. Notwithstanding the foregoing, nothing in this Section 8.1 shall\nprevent any party from making any public announcement it considers necessary in\norder to satisfy its obligations under the law or the rules of any national\nsecurities exchange or market, provided such party, to the extent practicable,\nprovides the other parties with an opportunity to review and comment on any\nproposed public announcement before it is made.\n\n 8.2. Pronouns. All pronouns or any variation thereof shall be deemed to\n --------\nrefer to the masculine, feminine or neuter, singular or plural, as the identity\nof the person, persons, entity or entities may require.\n\n 8.3. Notices.\n -------\n\n (a) Any notices, reports or other correspondence (hereinafter collectively\nreferred to as \"correspondence\") required or permitted to be given hereunder\n --------------\nshall be sent by postage prepaid first class mail, courier or facsimile or\ndelivered by hand to the party to whom such correspondence is required or\npermitted to be given hereunder. The date of giving any notice shall be the date\nof its actual receipt.\n\n (b) All correspondence to the Company shall be addressed as follows:\n\n Level 3 Communications, Inc.\n 1025 Eldorado Boulevard\n\n -9-\n\n\n\n Broomfield, CO 80021\n\n Attention: Thomas C. Stortz, Esq.\n Facsimile: (720) 888-5127\n with a copy to:\n\n Willkie Farr & Gallagher\n 787 Seventh Avenue\n New York, NY 10019\n\n Attention: John S. D'Alimonte\n\n Facsimile: (212) 728-8111\n\n (c) All correspondence to any Investor shall be sent to such Investor at\nthe address set forth in EXHIBIT A.\n ---------\n\n (d) Any Person may change the address to which correspondence to it is to\nbe addressed by notification as provided for herein.\n\n\n 8.4. Captions. The captions and paragraph headings of this Agreement are\n --------\nsolely for the convenience of reference and shall not affect its interpretation.\n\n 8.5. Severability. Should any part or provision of this Agreement be held\n ------------\nunenforceable or in conflict with the applicable laws or regulations of any\njurisdiction, the invalid or unenforceable part or provisions shall be replaced\nwith a provision which accomplishes, to the extent possible, the original\nbusiness purpose of such part or provision in a valid and enforceable manner,\nand the remainder of this Agreement shall remain binding upon the parties\nhereto.\n\n 8.6. Governing Law. This Agreement shall be governed by, and construed in\n --------------\naccordance with, the laws of the State of New York, without giving effect to\nconflict of law principles thereof.\n\n\n 8.7. Waiver. No waiver of any term, provision or condition of this\n ------\nAgreement, whether by conduct or otherwise, in any one or more instances, shall\nbe deemed to be, or be construed as, a further or continuing waiver of any such\nterm, provision or condition or as a waiver of any other term, provision or\ncondition of this Agreement.\n\n 8.8. Expenses. Each party shall bear the cost of any and all fees and\n --------\nexpenses incurred in connection with the transactions contemplated hereby\nincluding, without limitation, legal, consulting and accounting fees; provided,\n --------\nhowever, that the Company shall pay the fees of one counsel to the Investors not\n-------\nin excess of $50,000.\n\n 8.9. Assignment. The rights and obligations of the parties hereto shall\n ----------\ninure to the benefit of and shall be binding upon the authorized successors and\npermitted assigns of each\n\n -10-\n\n\n\nparty. None of the parties may assign its rights or obligations under this\nAgreement or designate another person (i) to perform all or part of its\nobligations under this Agreement or (ii) to have all or part of its rights and\nbenefits under this Agreement, in each case without the prior written consent of\nthe other parties. In the event of any assignment in accordance with the terms\nof this Agreement, the assignee shall specifically assume and be bound by the\nprovisions of the Agreement by executing and agreeing to an assumption agreement\nreasonably acceptable to the Company.\n\n 8.10. Counterparts. This Agreement may be signed in one or more\n ------------\ncounterparts, each of which shall be an original, but all of which together\nshall constitute one instrument\n\n 8.11. Entire Agreement. This Agreement (including the exhibits hereto)\n ----------------\nconstitutes the entire agreement between the parties hereto respecting the\nsubject matter hereof and supersedes all prior agreements, negotiations,\nunderstandings, representations and statements respecting the subject matter\nhereof, whether written or oral, other than that certain \"Whereas Agreement,\"\ndated as the date hereof. No modification, alteration, waiver or change in any\nof the terms of this Agreement shall be valid or binding upon the parties hereto\nunless made in writing and duly executed by the Company and Investors.\n\n -11-\n\n\n\n\n IN WITNESS WHEREOF, the parties hereto have executed this Agreement under\nseal as of the day and year first above written.\n\n LEVEL 3 COMMUNICATIONS, INC.\n\n\n By: \/s\/ Thomas C. Stortz\n --------------------------------------\n Name: Thomas C. Stortz\n Title: Group Vice President\n\n\n INVESTORS:\n\n LONGLEAF PARTNERS FUND,\n a series of Longleaf Partners Funds Trust,\n a Massachusetts business trust\n\n By: \/s\/ O. Mason Hawkins\n --------------------------------------\n Name: O. Mason Hawkins\n Title: Chairman of the Board\n\n LONGLEAF PARTNERS SMALL-CAP FUND,\n a series of Longleaf Partners Funds Trust,\n a Massachusetts business trust\n\n By: \/s\/ O. Mason Hawkins\n --------------------------------------\n Name: O. Mason Hawkins\n Title: Chairman of the Board\n\n LEGG MASON SPECIAL INVESTMENT TRUST, INC.\n\n By: Legg Mason Funds Management, Inc.\n Investment Manager\n\n By: \/s\/ Mary Chris Gay\n --------------------------------------\n Name: Mary Chris Gay\n Title: Senior Vice President\n\n\n\n [Signature Page to Securities Purchase Agreement]\n\n\n\n\n\n LEGG MASON INVESTMENT TRUST, INC.\n\n By: Legg Mason Funds Management, Inc.\n Investment Manager\n\n\n By: \/s\/ Mary Chris Gay\n -------------------------------------------\n Name: Mary Chris Gay\n Title: Senior Vice President\n\n BERKSHIRE HATHAWAY INC.\n\n By: \/s\/ Warren E. Buffett\n -------------------------------------------\n Name: Warren E. Buffett\n Title: Chairman and Chief Executive Officer\n\n\n [Signature Page to Securities Purchase Agreement]\n\n\n\n<\/pre>\n
\n\n Exhibit A<\/p>\n
INVESTORS<\/p>\n
Investor Principal Amount of Notes Purchase Price Payable
\n Name and Address to be Purchased at the Closing
\n————————————————————————————————————–<\/p>\n
\nLongleaf Partners Fund $230,000,000 $230,000,000
\n c\/o Southeastern Asset
\n Management, Inc.
\n6410 Poplar Ave., #900
\nMemphis, TN 38119
\nAttention: O. Mason Hawkins
\nFacsimile: (901) 818-5160<\/p>\nLongleaf Partners Small-Cap Fund 70,000,000 70,000,000
\nc\/o Southeastern Asset
\n Management, Inc.
\n6410 Poplar Ave., #900
\nMemphis, TN 38119
\nAttention: O. Mason Hawkins
\nFacsimile: (901) 818-5160<\/p>\n
Legg Mason Special Investment Trust, Inc. 50,000,000 50,000,000
\nc\/o Legg Mason Funds Management, Inc.
\n100 Light Street, 22nd Floor
\nBaltimore, MD 21202
\nAttention: Jennifer Murphy<\/p>\n
Legg Mason Investment Trust, Inc. 50,000,000 50,000,000
\nc\/o Legg Mason Funds
\n Management, Inc.
\n100 Light Street, 22nd Floor
\nBaltimore, MD 21202
\nAttention: Jennifer Murphy<\/p>\n
Berkshire Hathaway Inc. 100,000,000 100,000,000
\n1440 Kiewit Plaza
\nOmaha, NE 68131 Attention:
\n ———————————- —————————–
\nTOTAL $500,000,000 $500,000,000
\n ================================== =============================
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
EXHIBIT B<\/p>\n
FORM OF NOTE<\/p>\n
EXHIBIT C<\/p>\n
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF THE
\n SERIES B CONVERTIBLE PREFERRED STOCK<\/p>\n
EXHIBIT D<\/p>\n
FORM OF THIRD SUPPLEMENTAL INDENTURE<\/p>\n
EXHIBIT E<\/p>\n
FORM OF OPINION OF WILLKIE FARR & GALLAGHER<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6889,8040,8048],"corporate_contracts_industries":[9446,9418,9519],"corporate_contracts_types":[9622,9627],"class_list":["post-43577","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-berkshire-hathaway-inc","corporate_contracts_companies-legg-mason-inc","corporate_contracts_companies-level-3-communications-inc","corporate_contracts_industries-insurance__property","corporate_contracts_industries-financial__securities","corporate_contracts_industries-telecommunications__telephone","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43577","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43577"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43577"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43577"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43577"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}