LEVEL 3 COMMON STOCK, IN EACH CASE, AFTER THE DATE HEREOF AND
PRIOR TO THE CLOSING) SHALL BE REDUCED BY A NUMBER EQUAL TO THE QUOTIENT
OBTAINED BY DIVIDING $80 MILLION BY THE GREATER OF (A) THE AVERAGE OF THE VOLUME
WEIGHTED SALES PRICES PER SHARE OF LEVEL 3 COMMON STOCK AS REPORTED BY THE
NASDAQ STOCK MARKET FOR THE 10 TRADING-DAY PERIOD ENDING UPON THE TRADING DAY
IMMEDIATELY PRECEDING THE DATE THE BUYER DELIVERS WRITTEN NOTICE OF ITS EXERCISE
OF THE BENEFIT PLAN SUBSTITUTION RIGHT AND (B) $2.35, (II) THE TRANSFERRED
BENEFIT PLANS SHALL NO LONGER BE EXCLUDED LIABILITIES FOR PURPOSES OF THIS
AGREEMENT AND SHALL BE DEEMED REMOVED FROM SCHEDULE 7.4 FOR ALL PURPOSES HEREOF
AND (III) THE ASSETS OF THE RETIREMENT PLAN HELD IN TRUST SHALL
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NO LONGER BE EXCLUDED ASSETS AND SHALL BE DEEMED REMOVED FROM SCHEDULE 7.4 FOR
ALL PURPOSES HEREOF.
SECTION 2.3.
CLOSING DATE TRANSACTIONS.
ON THE CLOSING DATE, THE BUYER SHALL
(I) PAY THE CASH PURCHASE PRICE AND THE ADDITIONAL CASH AMOUNT BY WIRE TRANSFER
OF IMMEDIATELY AVAILABLE FUNDS TO SUCH ACCOUNT (OR ACCOUNTS) AS THE SELLER
SHALL, NOT LESS THAN TWO BUSINESS DAYS PRIOR TO THE CLOSING DATE, DESIGNATE IN
WRITING TO THE BUYER AND (II) ISSUE THE SHARES TO THE SELLER (WITH ANY
FRACTIONAL SHARES THAT WOULD OTHERWISE RESULT ROUNDED TO THE NEAREST WHOLE
NUMBER) FREE AND CLEAR OF ALL LIENS (OTHER THAN LIENS INCURRED BY THE SELLER)
AND DELIVER OR CAUSE TO BE DELIVERED TO THE SELLER ONE OR MORE CERTIFICATES
THEREFOR REGISTERED IN THE NAME OF THE SELLER.
ON THE CLOSING DATE, THE SELLER
SHALL (A) DELIVER TO THE BUYER EVIDENCE OF THE MEMBERSHIP UNITS BEING PURCHASED
BY THE BUYER FROM THE SELLER AGAINST PAYMENT BY THE BUYER TO THE SELLER OF THE
PURCHASE PRICE FOR SUCH MEMBERSHIP UNITS AND (B) DULY AMEND THE ORGANIZATIONAL
DOCUMENTS OF THE COMPANY TO REFLECT, EFFECTIVE AS OF THE CLOSING DATE, THE
ADMISSION OF THE BUYER AS THE SOLE MEMBER OF THE COMPANY AND THE WITHDRAWAL OF
THE SELLER AS A MEMBER OF THE COMPANY.
SECTION 2.4.
ALLOCATION OF PURCHASE PRICE.
(A)
THE BUYER AND THE SELLER AGREE TO TREAT THE
SALE OF THE MEMBERSHIP UNITS AS A SALE OF THE ASSETS OF THE COMPANY BY THE
COMPANY TO THE BUYER FOR ALL FEDERAL, STATE AND LOCAL INCOME TAX PURPOSES
(INCLUDING TREATMENT AS A SALE OF THE ASSETS OF ANY OF THE COMPANY'S
SUBSIDIARIES THAT ARE DISREGARDED FOR TAX PURPOSES).
AS SOON AS REASONABLY
PRACTICABLE, BUT NOT LATER THAN 75 DAYS FOLLOWING THE CLOSING DATE, THE BUYER
SHALL PREPARE AND DELIVER TO THE SELLER A SCHEDULE WHICH SHALL SET FORTH THE
ALLOCATION OF THE PURCHASE PRICE, LIABILITIES AND OTHER RELATED ITEMS AMONG THE
ASSETS OF THE COMPANY (THE "ALLOCATION").
THE SELLER SHALL, WITHIN 40 DAYS
AFTER THE DATE ON WHICH THE ALLOCATION IS DELIVERED TO THE SELLER, PROVIDE THE
BUYER WITH A WRITTEN NOTICE STATING THOSE ITEMS TO WHICH THE SELLER TAKES
EXCEPTION.
IF A CHANGE PROPOSED BY THE SELLER IS