Exhibit 10.1
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is dated as of October 1,
2009, by and among Level 3 Communications, Inc., a Delaware corporation (the
"Company"), and each of the investors named in Exhibit A attached hereto (each,
an "Investor" and collectively, the "Investors").
W I T N E S S E T H:
WHEREAS, the Company desires to issue and sell to each Investor pursuant to this
Agreement and the Registration Statement (as defined below), and each Investor,
severally, desires to purchase from the Company the aggregate principal amount
of the Company's 7% Convertible Senior Notes due 2015, Series B as is set forth
opposite its respective name in Exhibit A attached hereto, which Notes will be
convertible into authorized but unissued shares of the Company's common stock,
par value $0.01 per share (the "Common Stock").
NOW THEREFORE, in consideration of the mutual agreements, representations,
warranties and covenants herein contained, the parties hereto agree as follows:
1.
DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING RESPECTIVE MEANINGS:
(A)
"ADVISORY CLIENTS" SHALL MEAN THOSE INSTITUTIONAL INVESTMENT
CLIENTS OF LOOMIS AND ZAZOVE ON WHOSE BEHALF LOOMIS AND ZAZOVE, RESPECTIVELY,
ARE PURCHASING THE NOTES.
(B)
"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.
(C)
"BENEFICIALLY OWN" WITH RESPECT TO ANY SECURITIES MEANS HAVING
"BENEFICIAL OWNERSHIP" OF SUCH SECURITIES (AS DETERMINED PURSUANT TO RULE 13D-3
UNDER THE EXCHANGE ACT, 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.
(D)
"BOARD OF DIRECTORS" SHALL MEAN THE BOARD OF DIRECTORS OF THE
COMPANY.
(E)
"DISCLOSURE DOCUMENTS" SHALL MEAN THE COMPANY'S ANNUAL REPORT ON
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2008, THE COMPANY'S QUARTERLY REPORTS
ON FORM 10-Q FOR THE QUARTERS ENDED MARCH 31, 2009 AND JUNE 30, 2009, ANY
CURRENT REPORTS ON FORM 8-K FILED AND NOT FURNISHED BY THE COMPANY TO THE SEC ON
OR AFTER DECEMBER 31, 2008, THE COMPANY'S SCHEDULE 14A PROXY STATEMENT FOR ITS
ANNUAL MEETING OF STOCKHOLDERS, DATED APRIL 3, 2009, THE REGISTRATION STATEMENT
AND THE PROSPECTUS, TOGETHER IN EACH CASE WITH ANY DOCUMENTS INCORPORATED BY
REFERENCE THEREIN OR EXHIBITS THERETO.
(F)
"EXCHANGE ACT" SHALL MEAN THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED, AND ALL OF THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
(G)
"FAIRFAX" SHALL MEAN FAIRFAX FINANCIAL HOLDINGS