AN OFFSET TO AN OBLIGATION PAYABLE
CURRENTLY) WITHIN A PERIOD OF FIVE YEARS FOLLOWING THE CLOSING DATE BY THE
INDEMNITEE OR ITS AFFILIATES AS A RESULT OF THE LOSS. IN
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THE CASE OF ANY TAX BENEFITS REALIZED AFTER THE INDEMNITY AMOUNT HAS BEEN PAID
BY THE SELLER (BUT WITHIN THE FIVE-YEAR PERIOD FOLLOWING THE CLOSING DATE), THE
BUYER SHALL MAKE A FURTHER PAYMENT TO THE SELLER WHEN SUCH BENEFITS ARE
RECEIVED.
TAX BENEFITS SHALL BE CONSIDERED REALIZED WHEN THERE IS A REDUCTION
IN THE BUYER'S LIABILITY FOR TAXES, DETERMINED BY COMPARING THE AMOUNT OF SUCH
LIABILITY WITHOUT THE TAX BENEFITS TO THE AMOUNT OF SUCH LIABILITY WHEN SUCH TAX
BENEFITS ARE TAKEN INTO ACCOUNT;
(VII)
THE PARTIES AGREE THAT, IF THE LIABILITIES
PURSUANT TO SECTION 9.2 EXCEED $50 MILLION IN THE AGGREGATE, LEUCADIA AND THE
SELLER SHALL BE ENTITLED TO SATISFY 50% OF SUCH LIABILITIES IN EXCESS OF $50
MILLION BY DELIVERY OF SHARES, WITH STOCK POWERS DULY ENDORSED, WITH THE VALUE
OF EACH SHARE AT THE TIME OF SUCH PAYMENT BEING DEEMED TO BE THE AVERAGE OF THE
VOLUME WEIGHTED SALES PRICES PER SHARE OF LEVEL 3 COMMON STOCK AS REPORTED BY
THE NASDAQ STOCK MARKET (OR SUCH OTHER NATIONALLY RECOGNIZED TRADING MARKET ON
WHICH THE LEVEL 3 COMMON STOCK IS THEN PRINCIPALLY TRADED) FOR THE 10
TRADING-DAY PERIOD ENDING UPON THE TRADING DAY IMMEDIATELY PRECEDING THE DATE
THAT LEUCADIA AND/OR THE SELLER MAKES THE PAYMENT PURSUANT TO THIS SECTION 9.2;
(VIII)
NEITHER LEUCADIA NOR THE SELLER SHALL HAVE ANY
LIABILITY UNDER THIS SECTION 9.2 FOR A LOSS TO THE EXTENT SUCH LOSS HAS BEEN
REFLECTED IN THE ACTUAL ADJUSTED NET WORKING CAPITAL AS FINALLY DETERMINED
PURSUANT TO SECTION 3.2 HEREOF; AND
(IX)
NEITHER LEUCADIA NOR THE SELLER SHALL HAVE
ANY LIABILITY WITH RESPECT TO THE TRANSFERRED BENEFIT PLANS IN THE EVENT THE
BUYER EXERCISES THE BENEFIT PLAN SUBSTITUTION RIGHT IN ACCORDANCE WITH
SECTION 2.2(B).
SECTION 9.3.
INDEMNIFICATION BY LEVEL 3 AND THE BUYER.
(A)
NOTWITHSTANDING THE CLOSING AND REGARDLESS
OF ANY INVESTIGATION AT ANY TIME MADE BY OR ON BEHALF OF THE SELLER OR LEUCADIA
OR OF ANY KNOWLEDGE OR INFORMATION THAT THE SELLER OR LEUCADIA MAY HAVE, THE
BUYER AND LEVEL 3 SHALL JOINTLY AND SEVERALLY INDEMNIFY AND FULLY DEFEND, SAVE
AND HOLD LEUCADIA AND THE SELLER HARMLESS IF LEUCADIA OR THE SELLER SHALL AT ANY
TIME OR FROM TIME TO TIME SUFFER ANY LOSSES ARISING OUT OF OR RESULTING FROM, OR
SHALL PAY OR BECOME OBLIGATED TO PAY ANY SUM ON ACCOUNT OF ANY ONE OR MORE OF
THE FOLLOWING:
(I)
ANY BREACH OF ANY REPRESENTATION OR
WARRANTY OF LEVEL 3 OR THE BUYER CONTAINED IN THIS AGREEMENT OR IN ANY
CERTIFICATE DELIVERED TO LEUCADIA OR THE SELLER IN CONNECTION WITH THE CLOSING;
(II)
ANY FAILURE OF LEVEL 3 OR THE BUYER DULY
TO PERFORM OR OBSERVE ANY COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT ON
THE PART OF LEVEL 3 OR THE BUYER TO BE PERFORMED OR OBSERVED;
(III)
THE MATTERS ADDRESSED IN