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VOTING AGREEMENT AND IRREVOCABLE PROXY
VOTING AGREEMENT dated May 25, 2000 among Reliance Group Holdings,
Inc., a Delaware corporation (the "Company") and the other parties signatory
hereto (individually and collectively, the "Stockholder").
W I T N E S S E T H:
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WHEREAS, concurrently herewith, Leucadia National Corporation, a New
York corporation ("Parent"), Leucadia Acquisition Corp., a Delaware corporation
and a direct wholly owned subsidiary of Parent ("Sub") and the Company are
entering into an Agreement and Plan of Merger (as such agreement may hereafter
be amended from time to time, the "Merger Agreement"; capitalized terms used and
not defined herein have the respective meanings ascribed to them in the Merger
Agreement), pursuant to which Sub will be merged with and into the Company, or
such other form of transaction as may result pursuant to the terms of the Merger
Agreement (the "Merger");
WHEREAS, the Stockholder is the owner of such number of shares of
Parent Common Stock (as hereinafter defined) as set forth on Schedule I hereto;
WHEREAS, if required by the rules of the New York Stock Exchange,
Inc. ("NYSE"), affirmative approval of the holders of Parent Common Stock
representing a majority of the votes cast at the Parent Stockholders Meeting
approving the Share Issuance (assuming the total votes cast on such proposal
represents more than 50% of the Parent Common Stock entitled to vote thereon) is
a condition to the consummation of the Merger; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, the Company has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
"Parent Common Stock" shall mean at any time the common shares,
$1.00 par value, of the Company.
"Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Provisions Concerning Parent Common Stock. (a) The Stockholder
hereby agrees that during the period commencing on the date hereof and
continuing until
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the first to occur of the Effective Time or termination of the Merger Agreement
in accordance with its terms, at any meeting of the holders of Parent Common
Stock, however called, the Stockholder shall vote (or cause to be voted) the
shares of Parent Common Stock beneficially owned by the Stockholder (such shares
the "Existing Shares", and together with any shares of Parent Common Stock
acquired by the Stockholder after the date hereof and prior to the termination
of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise the "Shares") in favor of the
Share Issuance. The Stockholder shall not enter into any agreement or
understanding with any person or entity the effect of which would be to violate
the provisions and agreements contained in this Section 2.
(b) In order to permit the Company to exercise voting rights hereto,
the Stockholder hereby grants to the Company an irrevocable proxy coupled with
an interest to vote all or any part of the Shares and to exercise all other
rights, powers, privileges and remedies to which the Stockholder as holder of
the Shares is entitled with respect to the matters contained in Section 2(a)
hereof (including calling special meetings of shareholders, and voting at such
meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Shares on the record
books of Parent) by any other person (including Parent or any officer or agent
thereof), and which proxy shall only terminate upon the first to occur of the
Effective Time or the termination of the Merger Agreement in accordance with its
terms.
3. Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to the Company that:
(a) the Stockholder is the record or beneficial holder of the number
of Existing Shares set forth opposite such Stockholder name on Schedule I
hereto, free and clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any encumbrances
whatsoever, except as set forth on Schedule I. On the date hereof, the number of
Existing Shares set forth opposite such Stockholder's name on Schedule I hereto
constitute all the Shares owned of record or beneficially by such Stockholder.
The Stockholder has voting power with respect to all of the Existing Shares set
forth opposite Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
law and the terms of this Agreement and except as set forth on Schedule I.
(b) the Stockholder has the legal capacity, power and authority to
enter into and perform all of the Stockholder's obligations under this
Agreement, the execution and delivery of this Agreement by the Stockholder and
the consummation by the Stockholder of the transactions contemplated hereby have
been duly authorized by all necessary Stockholder action on the part of the
Stockholder and no other actions on the part of the Stockholder are necessary to
authorize this Agreement or any of the transactions contemplated hereby;
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(c) this Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding obligation of the Stockholder,
and, assuming this Agreement constitutes a valid and binding obligation of the
Company, is enforceable against the Stockholder in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(d) the execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not (1)
violate any agreement to which the Stockholder is a party or by which it or its
assets are bound, including without limitation, any voting agreement,
stockholders agreement or voting trust or the governing documents, if any, of
any Stockholder, (2) conflict with or violate any statute, rule, regulation,
order, judgment or decree applicable to the Stockholder or by which it or any of
its assets or properties is bound or affected, or (3) result in any breach or
violation of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give rise to any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of any lien or other encumbrance on any of the property or assets of
the Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, or other instrument or obligation to which the
Stockholder is a party or by which the Stockholder or any of its assets or
properties is bound or affected;
(e) beginning on the date hereof and ending on the first to occur of
the Effective Time or termination of the Merger Agreement or the holding of the
Parent Stockholders Meeting in accordance with its terms, the Stockholder shall
not (i) directly or indirectly, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of such Stockholder's Shares or any interest therein or borrow any
additional sums against any Shares indentified as being subject to this
Agreement; (ii) except as contemplated by this Agreement, grant any proxies or
powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of such Stockholder contained herein untrue
or incorrect or have the effect of preventing or disabling the Stockholder from
performing the Stockholder's obligations under this Agreement;
(f) the Stockholder understands and acknowledges that the Company is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement; and
(g) the Stockholder's Shares and the certificates representing such
Shares are now, and at all times during the term hereof will be, held by such
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all liens,
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claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever (except as set forth on
Schedule I).
4. Fiduciary Duties. Notwithstanding anything in this Agreement to
the contrary, the covenants and agreements set forth herein shall not prevent
the Stockholder or any of the Stockholder's designees serving on Parent's Board
of Directors from taking any action, subject to the applicable provisions of the
Merger Agreement, while acting in such person's capacity as a director of
Parent.
5. Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, and permitted assigns. Except as expressly provided in this
Agreement, neither this Agreement nor the rights or the obligations of either
party hereto are assignable, except by operation of law, or with the written
consent of the other party. Nothing contained in this Agreement, express or
implied, is intended to confer upon any person other than the parties hereto and
their respective permitted assigns any rights or remedies of any nature
whatsoever by reason of this Agreement.
6. Specific Performance. The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy. Accordingly, each party agrees that, in addition to other
remedies, the other party shall be entitled to an injunction restraining any
violation or threatened violation of the provisions of this Agreement. In the
event that any action should be brought in equity to enforce the provisions of
the Agreement, neither party will allege, and each party hereby waives the
defense, that there is an adequate remedy at law.
7. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
8. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
9. No Remedy in Certain Circumstances. Each party agrees that,
should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith or not to take an action consistent
herewith or required hereby, the validity, legality and enforceability of the
remaining provisions and obligations contained or set forth herein shall not in
any way be affected or impaired thereby, unless the foregoing inconsistent
action or the failure to take an action constitutes a material breach of this
Agreement or makes the Agreement impossible to perform in which case this
Agreement shall terminate. Except as otherwise contemplated by this Agreement,
to the
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extent that a party hereto took an action inconsistent herewith or failed to
take action consistent herewith or required hereby pursuant to an order or
judgment of a court or other competent authority, such party shall incur no
liability or obligation unless such party did not in good faith seek to resist
or object to the imposition or entering of such order or judgment.
10. Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered mail, postage prepaid, and shall
be deemed to be given, dated and received when so delivered personally,
telegraphed or telecopied (answerback received) or, if mailed, five business
days after the date of mailing, to the following address or telecopy number, or
to such other address or addresses as such person may subsequently designate by
notice given hereunder:
(a) if to the Company, to:
Reliance Group Holdings, Inc.
29th Floor
55 East 52nd Street
New York, New York 10055
Attn: General Counsel
Facsimile: (212) 909-1864
with a copy (which shall not constitute notice) to:
Dewey Ballantine LLP
1301 Avenue of the America
New York, New York 10019
Attn: Jonathan L. Freedman, Esq.
Telecopy: (212) 259-6333
Telephone: (212) 259-6680
(b) if to the Stockholder, to the addresses set forth in
Schedule I hereto:
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: Stephen E. Jacobs, Esq.
Telecopy: (212) 310-8007
Telephone: (212) 310-8000
11. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely within such state.
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12. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
13. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
14. Expenses. Except as otherwise expressly provided herein or in
the Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
15. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
[signature page follows]
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IN WITNESS WHEREOF, the Company and each Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
RELIANCE GROUP HOLDINGS, INC.
By: /s/ Lowell C. Freiberg
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Name: Lowell C. Freiberg
STOCKHOLDER
By: /s/ Ian M. Cumming
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Name: Ian M. Cumming
By: /s/ Joseph S. Steinberg
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Name: Joseph S. Steinberg
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SCHEDULE 1 TO
VOTING AGREEMENT AND IRREVOCABLE PROXY
Name and Address of Stockholder Number of Shares Owned
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Ian M. Cumming
c/o Leucadia National Corporation 9,892,002 Common Shares
529 East South Temple
Salt Lake City, Utah 84102
Joseph S. Steinberg
c/o Leucadia National Corporation 9,047,989 Common Shares
315 Park Avenue South
New York, New York 10023
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Ian M. Cumming
Shares subject to pledge:
1 million shares pledged to Jackson State Bank to secure a $10 million
revolving credit line.
950,000 shares pledged in a margin account to Republic Financial Service
Brokerage and Investments.
431,366 shares pledged to The Chase Manhattan Bank to secure a $6 million line
of credit.
