TO WHICH THEY ARE A PARTY AND TO CARRY OUT THEIR RESPECTIVE
OBLIGATIONS HEREUNDER AND THEREUNDER.
THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT AND THE PERFORMANCE OF THE
BUYER'S AND LEVEL 3'S RESPECTIVE OBLIGATIONS HEREUNDER AND THEREUNDER HAVE BEEN
DULY AUTHORIZED BY ALL NECESSARY LIMITED LIABILITY COMPANY OR CORPORATE ACTION
(AS THE CASE MAY BE) OF THE BUYER AND
36
LEVEL 3, AND NO OTHER LIMITED LIABILITY COMPANY OR CORPORATE PROCEEDINGS (AS THE
CASE MAY BE) ON THE PART OF THE BUYER AND LEVEL 3 ARE NECESSARY TO AUTHORIZE
SUCH EXECUTION, DELIVERY AND PERFORMANCE.
THIS AGREEMENT HAS BEEN DULY EXECUTED
BY THE BUYER AND LEVEL 3 AND, ASSUMING DUE EXECUTION AND DELIVERY BY LEUCADIA
AND THE SELLER, SHALL CONSTITUTE THEIR VALID AND BINDING OBLIGATION, ENFORCEABLE
AGAINST THEM IN ACCORDANCE WITH ITS TERMS, SUBJECT TO (I) THE EFFECT OF
BANKRUPTCY, FRAUDULENT CONVEYANCE, REORGANIZATION, MORATORIUM AND OTHER SIMILAR
LAWS RELATING TO OR AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY,
(II) GENERAL EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY
OR AT LAW) AND (III) AN IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
SECTION 6.6.
CAPITALIZATION AND RELATED MATTERS.
(A)
AS OF THE DATE HEREOF, LEVEL 3'S CAPITAL
STOCK CONSISTS OF (A) 1.5 BILLION AUTHORIZED SHARES OF LEVEL 3 COMMON STOCK AND
(B) 10,000,000 AUTHORIZED SHARES OF PREFERRED STOCK, PAR VALUE $0.01 PER SHARE,
OF WHICH NO SHARES OF PREFERRED STOCK ARE OUTSTANDING.
AS OF OCTOBER 27, 2005,
THERE WERE 701,076,214 SHARES OF LEVEL 3 COMMON STOCK OUTSTANDING.
EXCEPT AS
SET FORTH ON SCHEDULE 6.6 HERETO AS OF JUNE 30, 2005, (I) NEITHER LEVEL 3 NOR
ANY OF ITS SUBSIDIARIES HAS OUTSTANDING ANY STOCK OR OTHER SECURITIES
CONVERTIBLE INTO OR EXCHANGEABLE FOR ANY SHARES OF CAPITAL STOCK OF LEVEL 3, ANY
RIGHTS TO SUBSCRIBE FOR OR TO PURCHASE OR ANY OPTIONS FOR THE PURCHASE OF, OR
ANY AGREEMENTS PROVIDING FOR THE ISSUANCE (CONTINGENT OR OTHERWISE) OF, OR ANY
CALLS, COMMITMENTS OR CLAIMS OF ANY OTHER CHARACTER RELATING TO THE ISSUANCE OF,
ANY CAPITAL STOCK OF LEVEL 3, OR ANY STOCK OR SECURITIES CONVERTIBLE INTO OR
EXCHANGEABLE FOR ANY CAPITAL STOCK OF LEVEL 3 OTHER THAN THOSE ISSUED UNDER
EMPLOYEE BENEFIT PLANS OF LEVEL 3; AND (II) NEITHER LEVEL 3 NOR ANY OF ITS
SUBSIDIARIES IS SUBJECT TO ANY OBLIGATION (CONTINGENT OR OTHERWISE) TO
REPURCHASE OR OTHERWISE ACQUIRE OR RETIRE ANY SHARES OF CAPITAL STOCK OF LEVEL
3.
ALL OF THE OUTSTANDING SHARES OF LEVEL 3 COMMON STOCK HAVE BEEN DULY AND
VALIDLY ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE.
AS OF THE CLOSING, THE
SHARES WILL BE DULY AUTHORIZED AND, UPON ISSUANCE, SALE AND DELIVERY AS
CONTEMPLATED BY THIS AGREEMENT, THE SHARES WILL BE VALIDLY ISSUED, FULLY PAID
AND NON-ASSESSABLE SECURITIES OF LEVEL 3.
(B)
ALL OF THE OUTSTANDING MEMBERSHIP UNITS OF
THE BUYER ARE OWNED OF RECORD AND BENEFICIALLY BY LEVEL 3, DIRECTLY OR
INDIRECTLY.
SECTION 6.7.
SEC FILINGS.
(A)
THE BUYER HAS DELIVERED OR MADE AVAILABLE
TO LEUCADIA AND THE SELLER A CORRECT