<PAGE>
As filed with the Securities and Exchange Commission on September 11, 1995
Registration No. 33-61867
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
Amendment No. 2
to
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
-------------
Leucadia National Corporation
(Exact Name of Registrant as Specified in its Charter)
New York 13-2615557
(State or Other Jurisdiction (I.R.S. Employer Identification
of Incorporation or No.)
Organization)
315 Park Avenue South
New York, N.Y. 10010-3607
(212) 460-1900
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
JOSEPH A. ORLANDO
Vice President and Comptroller
Leucadia National Corporation
315 Park Avenue South
New York, N.Y. 10010-3607
(212) 460-1900
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
STEPHEN E. JACOBS, ESQ. GERALD S. TANENBAUM, ESQ.
Weil, Gotshal & Manges MICHAEL A. BECKER, ESQ.
767 Fifth Avenue Cahill Gordon & Reindel
New York, New York 10153 80 Pine Street
(212) 310-8000 New York, New York 10005
(212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [_]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. [_] __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_] __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
(Cover Page continued on next page)<PAGE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND
EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Registrant in connection
with the securities being registered are as follows:
<TABLE>
<S> <C>
SEC Registration Fee . . . . . . . . . . . . $ 35,833
Accounting Fees and Expenses . . . . . . . . 100,000
Printing and Photocopying . . . . . . . . . . 30,000
Legal Fees and Expenses . . . . . . . . . . . 250,000
Blue Sky Fees and Expenses . . . . . . . . . 10,000
Miscellaneous Expenses . . . . . . . . . . . 24,167
---------
Total Expenses . . . . . . . . . . . . $450,000
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 722 through 725 of the New York Business Corporation Law
(the "Business Corporation Law") provide that a corporation may
indemnify, with certain limitations and exceptions, a director or
officer as follows: (1) in a derivative action, against his
reasonable expenses, including attorneys' fees but excluding certain
settlement costs, actually and necessarily incurred by him in
connection with the defense thereof, or an appeal therein, if such
director or officer acted, in good faith, for a purpose which he
reasonably believed to be in (or in the case of service for another
corporation, not opposed to) the best interests of the corporation;
and (2) in a civil or criminal non-derivative action or proceeding
including a derivative action by another corporation, partnership or
other enterprise in which any director or officer of the indemnifying
corporation served in any capacity at the indemnifying corporation's
request, against judgments, fines, settlement payments and reasonable
expenses, including attorneys' fees, incurred as a result thereof, or
any appeal therein, if such director or officer acted in good faith,
for a purpose which he reasonably believed to be in (or, in the case
of service for any other corporation, not opposed to) the best
interests of the corporation and, in criminal actions and proceedings,
in addition, had no reasonable cause to believe that his conduct was
unlawful. Such indemnification is a matter of right where the
director or officer has been successful on the merits or otherwise,
and otherwise may be granted upon corporate authorization or court
award as provided in the statute.
Section 721 of the Business Corporation Law provides that
indemnification arrangements can be established for directors and
officers, by contract, by-law, charter provision, action of
shareholders or board of directors, on terms other than those
specifically provided by Article 7 of the Business Corporation Law,
provided that no indemnification may be made to or on behalf of any
director or officer if a judgment or other final adjudication adverse
to the director or officer establishes that his acts were committed in
bad faith or were the result of active and deliberate dishonesty and
were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to
which he was not legally entitled. Article V of the Company's By-Laws
provides for the indemnification, to the full extent authorized by
law, of any person made or threatened to be made a party in any civil
or criminal action or proceeding by reason of the fact that he, his
testator or intestate is or was a director or officer of the Company.
Section 726 of the Business Corporation Law provides that a
corporation may obtain insurance to indemnify itself and its directors
and officers. The Company maintains an insurance policy providing
both directors and officers liability coverage and corporate
reimbursement coverage.
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<PAGE>
Article Sixth of the Company's Certificate of Incorporation
contains a charter provision eliminating or limiting director
liability for monetary damages arising from breaches of fiduciary
duty, subject only to certain limitations imposed by statute.
ITEM 16. EXHIBITS.
Exhibit
Number Description
------ -----------
1 -Form of Underwriting Agreement.
4.1 -Specimen Certificate representing Common Shares (filed
as Exhibit 4.3 to the Company's Registration Statement
No. 33-57054).*
4.2 -Restated Certificate of Incorporation of the Company
(filed as Exhibit 5.1 to the Company's Current Report
on Form 8-K dated July 14, 1993).*
4.3 -By-Laws, as amended, of the Company (filed as Exhibit
4.5 to the Company's Registration Statement No. 33-57054).*
5 -Opinion of Weil, Gotshal & Manges.
23.1 -Consent of Coopers & Lybrand L.L.P.***
23.2 -Consent of Weil, Gotshal & Manges (included in the
opinion filed as Exhibit 5 to this Registration
Statement).
24 -Power of Attorney.***
28 -Schedule P of the 1994 Annual Statement to Insurance
Departments of the Colonial Penn Insurance Company and
Affiliated Property/Casualty Insurers and the Empire
Insurance Company, Principal Insurer (filed as Exhibit 28
to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994).*
____________
* Incorporated by reference.
*** Previously filed
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions in
Item 15 above, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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<PAGE>
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under
the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4), or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability
under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City and State of New
York, on this 11th day of September, 1995.
LEUCADIA NATIONAL CORPORATION
By:/s/ Joseph A. Orlando
-----------------------
Joseph A. Orlando
Vice President and Comptroller
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons
on behalf of the registrant and in the capacities indicated, on the
date set forth above.
SIGNATURE TITLE DATE
--------- ------- ------
* Chairman of the September 11, 1995
---------------------------- Board
(Ian M. Cumming) (Principal
Executive Officer)
* President and September 11, 1995
---------------------------- Director
(Joseph S. Steinberg) (Principal
Executive Officer)
/s/ Joseph A. Orlando Vice President and September 11, 1995
---------------------------- Comptroller
(Joseph A. Orlando) (Principal
Financial and
Accounting
Officer)
* Director September 11, 1995
----------------------------
(Paul M. Dougan)
* Director September 11, 1995
----------------------------
(Lawrence D. Glaubinger)
* Director September 11, 1995
----------------------------
(James E. Jordan)
* Director September 11, 1995
----------------------------
(Jesse Clyde Nichols, III)
* By: /s/ Joseph A. Orlando
---------------------------
Joseph A. Orlando
(Attorney-in-Fact)
<PAGE>
<PAGE>
EXHIBIT INDEX
Exemption
Exhibits Indication
-------- ----------
1 -Form of Underwriting Agreement.
4.1 -Specimen Certificate representing Common Shares (filed
as Exhibit 4.3 to the Company's Registration Statement
No. 33-57054).*
4.2 -Restated Certificate of Incorporation of the Company
(filed as Exhibit 5.1 to the Company's Current Report
on Form 8-K dated July 14, 1993).*
4.3 -By-Laws, as amended, of the Company (filed as Exhibit
4.5 to the Company's Registration Statement No. 33-57054).*
5 -Opinion of Weil, Gotshal & Manges.
23.1 -Consent of Coopers & Lybrand L.L.P.***
23.2 -Consent of Weil, Gotshal & Manges (included in the
opinion filed as Exhibit 5 to this Registration
Statement).
24 -Power of Attorney***
28 -Schedule P of the 1994 Annual Statement to Insurance
Departments of the Colonial Penn Insurance Company and
Affiliated Property/Casualty Insurers and the Empire
Insurance Company, Principal Insurer (filed as Exhibit 28
to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994).*
____________
* Incorporated by reference.
*** Previously filed.
<PAGE>
EXHIBIT 1
1,594,000 Shares
Leucadia National Corporation
Common Shares
UNDERWRITING AGREEMENT
September __, 1995
CS FIRST BOSTON CORPORATION
JEFFERIES & COMPANY, INC.
As Representatives of the Several Underwriters
c/o CS First Boston Corporation
Park Avenue Plaza
New York, NY 10055
Dear Sirs:
1. Introductory. The shareholders listed in
Schedule A hereto ("Selling Shareholders") propose severally to
sell an aggregate of 1,594,000 common shares, par value $1.00
per share, of Leucadia National Corporation (the "Company")
(such 1,594,000 common shares being hereinafter referred to as
the "Firm Securities"). The Company also proposes to sell to
the Underwriters, at the option of the Underwriters, an
aggregate of not more than 239,100 additional common shares,
par value $1.00 per share, of the Company (such 239,100
additional common shares being hereinafter referred to as the
"Optional Securities"). The Firm Securities and the Optional
Securities are herein collectively called the "Offered
Securities". The Firm Securities are issuable upon the
exercise of Warrants to Purchase Common Shares (the
"Warrants"). Each Warrant entitles the holder thereof to
purchase one common share, par value $1.00 per share, of the
Company at an exercise price of $20.1875 per share. The
Company and the Selling Shareholders hereby agree with the
several Underwriters named in Schedule B hereto
("Underwriters") as follows:
2. Representations and Warranties of the Company
and the Selling Shareholders. (a) The Company represents and
warrants to, and agrees with, the several Underwriters that:
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(i) A registration statement (No. 33-61867) relating
to the Offered Securities, including a form of prospectus,
has been filed with the Securities and Exchange Commission
("Commission") and either (A) has been declared effective
under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such
registration statement (the "initial registration
statement") has been declared effective, either (A) an
additional registration statement (the "additional
registration statement") relating to the Offered
Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial
registration statement and, if applicable, the additional
registration statement or (B) such an additional
registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such
filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial
registration statement and such additional registration
statement. If the Company does not propose to amend the
initial registration statement or if an additional
registration statement has been filed and the Company does
not propose to amend it, and if any post-effective
amendment to either such registration statement has been
filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared
effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the
Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration
statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement
means (A) if the Company has advised the Representatives
that it does not propose to amend such registration
statement, the date and time as of which such registration
statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery
of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement,
the date and time as of which such registration statement,
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<PAGE>
as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the
Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives
that it proposes to file one, "Effective Time" with
respect to such additional registration statement means
the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration
statement or the additional registration statement (if
any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its
Effective Time, including all material incorporated by
reference therein, including all information contained in
the additional registration statement (if any) and deemed
to be part of the initial registration statement as of the
Effective Time of the additional registration statement
pursuant to the General Instructions of the Form on which
it is filed and including all information (if any) deemed
to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b)
("Rule 430A(b)") under the Act, is hereinafter referred to
as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time,
including the contents of the initial registration
statement incorporated by reference therein and including
all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as
the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration
Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating
to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement,
including all material incorporated by reference in such
prospectus, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of
the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the
requirements of the Act and the rules and regulations of
<PAGE>
<PAGE>
the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading,
(B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed,
or will conform, in all respects to the requirements of
the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration
Statement each conform, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and none of such
documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue
statement of a material fact or will omit to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading, and no
Additional Registration Statement has been or will be
filed. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished
to the Company by any Underwriter through the
Representatives specifically for use therein, it being
understood and agreed that the only such information is
that described as such in Section 7(c).
(iii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of New York, with all requisite
corporate power and authority to own its properties and
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<PAGE>
conduct its business as described in the Prospectus, and
is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction
where the nature of its activities requires such
qualification, except where the failure of the Company to
be so qualified would not, singly or in the aggregate,
have a Material Adverse Effect (as defined below).
(iv) Each of the Company's subsidiaries listed in
Exhibit 21 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994 and such other
Subsidiaries created after such date that would be
required to be so listed if in existence at such date
(collectively, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which
it is chartered or organized, with all requisite corporate
power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly
qualified to transact business and is in good standing as
a foreign corporation in each jurisdiction where the
nature of its activities requires such qualification,
except where the failure of such Subsidiary to be so
qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
(v) All the outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable, and, except
as otherwise set forth in each Registration Statement and
the Prospectus, all outstanding shares of capital stock of
such Subsidiaries owned by the Company, either directly or
through wholly-owned Subsidiaries, are owned free and
clear of any security interests, claims, liens or
encumbrances.
(vi) The Company and each of its Subsidiaries have
all requisite power and authority, and all necessary
material authorizations, approvals, orders, licenses,
certificates and permits of and from regulatory or
governmental officials, bodies and tribunals, to own or
lease their respective properties and to conduct their
respective businesses as now being conducted and as
described in each Registration Statement and the
Prospectus, and neither the Company nor any of its
Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such
authorizations, approvals, orders, licenses, certificates
or permits which, singly or in the aggregate, if the
failure to be so licensed or approved or if the subject of
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<PAGE>
an unfavorable decision, ruling or finding, would have a
materially adverse effect on the condition (financial or
otherwise), earnings or business of the Company and its
subsidiaries, considered as one enterprise, whether or not
occurring in the ordinary course of business (a "Material
Adverse Effect"); and the Company and its subsidiaries are
in compliance with all applicable laws, rules, regulations
and orders and consents, the violation of which would have
a Material Adverse Effect.
(vii) The documents incorporated by reference in each
Registration Statement and the Prospectus (the
"Incorporated Documents"), when they became effective or
were or are filed with the Commission, as the case may be,
complied or will comply, as the case may be, in all
material respects with the applicable requirements of the
Act, the Securities Exchange Act of 1934 (the "Exchange
Act") and the Rules and Regulations, as applicable.
(viii) Since the respective dates as of which
information is provided in each Registration Statement and
the Prospectus, except as otherwise specifically stated
therein, there has been no material adverse change or
development with respect to the condition (financial or
otherwise), earnings or business of the Company and its
subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material
Adverse Change"), and there has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(ix) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus,
without giving effect to any exercise of outstanding
options or Warrants subsequent to the date of the
Prospectus; all of the Company's issued and outstanding
common shares, par value $1.00 per share (the "Common
Shares"), have been duly authorized and validly issued and
are fully paid and non-assessable. All of the issued and
outstanding Common Shares conform and the Offered
Securities will conform to the description thereof in each
Registration Statement and the Prospectus and none of the
issued and outstanding Common Shares were issued in
violation of any preemptive rights or other rights to
subscribe for or purchase securities. Except as set forth
in each Registration Statement and the Prospectus, no
options, warrants or other rights to purchase from the
Company, or agreements or other obligations of the Company
to issue or other rights to convert any obligation into,
or exchange any securities for, shares of capital stock of
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<PAGE>
or ownership interests in the Company are outstanding and
the Company has authorized and reserved sufficient capital
stock free of preemptive or other rights to subscribe for
or purchase securities for the purpose of enabling the
Company to satisfy its outstanding obligations with
respect thereto (including, without limitation, upon
exercise of the Warrants).
(x) The Firm Securities have been duly authorized
for issuance upon exercise of the Warrants and, when
issued and delivered to the Selling Shareholders by the
Company upon exercise of the Warrants against payment of
the exercise price therefor set forth in the Warrants,
will be validly issued and fully paid and non-assessable
and will not have been issued in violation of any
preemptive rights or other rights to subscribe for or
purchase securities.
(xi) The Optional Securities have been duly
authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment
therefor as set forth herein, will be validly issued and
fully paid and non-assessable and will not have been
issued in violation of any preemptive rights or other
rights to subscribe for or purchase securities.
(xii) Neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws or
similar organizational documents or in default in the
performance or observance of any obligation, agreement,
covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may
be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the effect
of which violation or default in performance or observance
would be a Material Adverse Effect.
(xiii) Each of the Warrants has been duly and validly
authorized by the Company and constitutes a valid and
legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
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(xiv) The Company is not (a) an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended, or (b) a bank holding company under the Bank
Holding Company Act of 1970, as amended.
(xv) There are no contracts or documents binding upon
or affecting the Company or any of its subsidiaries that
are required to be filed as exhibits to a Registration
Statement or to any of the documents incorporated by
reference therein by the Act, the Rules and Regulations or
the Exchange Act that have not been so filed.
(xvi) No consent, approval, authorization or order of
any court or governmental agency or body is required for
the consummation of the transactions contemplated hereby,
except such as have been obtained under the Act and such
as may be required under the blue sky or insurance laws of
any jurisdiction in connection with the purchase and
distribution of the Offered Securities by the Underwriters
and such other approvals as have been obtained.
(xvii) Neither the issue and sale of the Offered
Securities, the consummation of any other of the
transactions herein contemplated, nor the fulfillment of
the terms hereof, will conflict with, result in a breach
of, or constitute a default under the terms of any
indenture or other agreement or instrument to which the
Company or any of its subsidiaries is a party or bound or
any order, regulation, consent or memorandum of
understanding applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries
(where such conflict, breach or default would, singly or
in the aggregate, have a Material Adverse Effect) or the
charter or by-laws of the Company or any of its
Subsidiaries.
(xviii) In reliance in part upon representations of
Coopers & Lybrand L.L.P., the accountants who have
certified or shall certify the financial statements filed
or to be filed with the Commission as part of each
Registration Statement and the Prospectus (including the
Incorporated Documents) are independent accountants as
required by the Act.
(xix) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the
Company and any person that would give rise to a valid
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claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment.
(xx) Other than the Warrants, there are no contracts,
agreements or understandings between the Company and any
person granting such person the right to require the
Company to file a registration statement under the Act
with respect to any securities of the Company owned or to
be owned by such person or to require the Company to
include such securities in the securities registered
pursuant to a Registration Statement.
(xxi) The Common Shares are listed on the New York
Stock Exchange and Pacific Stock Exchange.
(xxii) This Agreement has been duly authorized,
executed and delivered by the Company.
(xxiii) Except as disclosed in the Registration
Statement and the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by
them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or
materially interfere with the use made or to be made
thereof by them; and except as disclosed in the
Registration Statement and the Prospectus, the Company and
its Subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made
thereof by them, except where the failure to so hold, own
or lease such property would not have, individually or in
the aggregate, a Material Adverse Effect.
(xxiv) No labor dispute with the employees of the
Company or any Subsidiary exists or, to the knowledge of
the Company, is imminent except for those that would not,
singly or in the aggregate, have a Material Adverse
Effect.
(xxv) The Company and its Subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how,
patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual
property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have
not received any notice of infringement of or conflict
with asserted rights of others with respect to any
intellectual property rights that, if determined adversely
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to the Company or any of its Subsidiaries, would, singly
or in the aggregate, have a Material Adverse Effect.
(xxvi) Except as disclosed in the Prospectus, neither
the Company nor any of its Subsidiaries is in violation of
any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the
protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would,
singly or in the aggregate, have a Material Adverse
Effect; and the Company is not aware of any pending
investigation which might lead to such a claim the adverse
determination of which would have a Material Adverse
Effect.
(xxvii) Except as disclosed in the Prospectus, there are
no pending actions, suits or proceedings against or
affecting the Company, any of its Subsidiaries or any of
their respective properties that, if determined adversely
to the Company or any of its Subsidiaries, would, singly
or in the aggregate, have a Material Adverse Effect or
would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement,
or which are otherwise material in the context of the sale
of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(xxviii) The financial statements included in each
Registration Statement and the Prospectus present fairly
the financial position of the Company and its consolidated
Subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with
generally accepted accounting principles in the United
States applied on a consistent basis except as disclosed
in the notes thereto.
(xxix) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes and the Company agrees
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to comply with such Section if prior to the completion of
the distribution of the Offered Securities it commences
doing such business.
(b) Each Selling Shareholder severally represents
and warrants to, and agrees with, the several Underwriters
that:
(i) None of the sale of Firm Securities by such
Selling Shareholder hereunder, the execution and delivery
of this Agreement, the Power of Attorney or the Custody
Agreement (each as defined below) by such Selling
Shareholder, or the consummation of any other of the
transactions herein contemplated, or the fulfillment of
the terms hereof, will conflict with, result in a breach
of or constitute a default under the terms of any
indenture or other agreement or instrument to which such
Selling Shareholder is a party or bound or any order,
regulation, consent or memorandum of understanding
applicable to such Selling Shareholder of any court,
regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling
Shareholder or, if such Selling Shareholder is other than
a natural person, the organizational documents of such
Selling Shareholder.
(ii) Such Selling Shareholder has, as of the date
hereof, good and marketable title to the Warrants which
are exercisable for the Firm Securities to be sold by such
Selling Shareholder hereunder, and will have, at the
Closing Date (as hereinafter defined), good and marketable
title to such Firm Securities, in each such case, free and
clear of any pledge, lien, security interest, encumbrance,
claim or equity other than pursuant to this Agreement and
the Custody Agreement; such Selling Shareholder has full
right, power and authority to exercise the Warrants for
the Firm Securities to be sold by such Selling Shareholder
hereunder and upon the exercise of such Warrants to sell,
transfer and deliver such Firm Securities to the
Underwriters hereunder; and upon delivery of the Firm
Securities to be sold by such Selling Shareholder
hereunder and payment of the purchase price therefor as
contemplated herein, each of the Underwriters will receive
good and marketable title to its ratable share of the Firm
Securities purchased by it from such Selling Shareholder,
free and clear of any pledge, lien, security interest,
encumbrance, claim or equity.
(iii) Such Selling Shareholder has duly executed and
delivered a Power of Attorney in the form of Exhibit A
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hereto (the "Power of Attorney") appointing Ian M.
Cumming, Joseph S. Steinberg and Joseph A. Orlando or each
of them as Attorneys-in-Fact (each, an "Attorney-in-
Fact"), and a Custody Agreement in the form of Exhibit B
hereto with Weil, Gotshal & Manges (the "Custody
Agreement"), as custodian (the "Custodian"); the
Attorneys-in-Fact, or any of them, are authorized to
execute and deliver this Agreement on behalf of such
Selling Shareholder, to determine the purchase price for
such Selling Shareholder's Firm Securities to be paid by
the Underwriters to such Selling Shareholder as provided
in Section 3 hereof, to exercise the Warrants which are
exercisable for such Firm Securities, to authorize the
delivery of such Firm Securities to the Underwriters
hereunder, to accept payment therefor and otherwise to act
on behalf of such Selling Shareholder in connection with
this Agreement.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for
the execution and delivery by or on behalf of such Selling
Shareholder of this Agreement, the Power of Attorney or
the Custody Agreement, the exercise of the Warrants for
the Firm Securities to be sold by such Selling Shareholder
hereunder, the sale and delivery by such Selling
Shareholder of such Firm Securities hereunder, or the
consummation of the other transactions contemplated
hereby, except such as have been obtained under the Act
and such as may be required under the blue sky or
insurance laws of any jurisdiction in connection with the
purchase and distribution of such Firm Securities by the
Underwriters and such other approvals as have been
obtained; and each such Selling Shareholder has the full
right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement, to
exercise the Warrants which are exercisable for the Firm
Securities to be sold by such Selling Shareholder
hereunder and upon the exercise of such Warrants to sell,
transfer and deliver such Firm Securities to the
Underwriters hereunder.
(v) Such Selling Shareholder has not taken, and will
not take, directly or indirectly, any action which is
designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered
Securities.
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(vi) Warrants in negotiable form, representing
Warrants exercisable for Firm Securities to be sold by
such Selling Shareholder hereunder, have been placed in
custody with the Custodian.
(vii) If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement: (A) on the Effective Date of
the Initial Registration Statement, the Initial
Registration Statement did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make
the statements therein not misleading, (B) on the
Effective Date of the Additional Registration Statement
(if any), each Registration Statement did not include, or
will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material
fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) neither any
Registration Statement or the Prospectus includes, or will
include, any untrue statement of a material fact or omits
or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the
Initial Registration Statement, the Initial Registration
Statement and the Prospectus will not include any untrue
statement of a material fact and will not omit to state
any material fact required to be stated therein or
necessary to make the statements therein not misleading.
The two preceding sentences apply only to the extent that
any statements in or omissions from a Registration
Statement or the Prospectus are based on written
information furnished to the Company by such Selling
Shareholder specifically for use therein.
(c) Each of Ian M. Cumming and Joseph S. Steinberg,
jointly and severally, represents and warrants to the several
Underwriters that to his best knowledge the representations and
warranties of the Company in Section 2(a) are true and correct
in all material respects.
3. Purchase, Sale and Delivery of Offered
Securities. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, each Selling Shareholder agrees,
severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from each Selling Shareholder, at a purchase price of $
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per share, that number of Firm Securities (rounded up or down,
as determined by CS First Boston Corporation ("CS First
Boston") in its discretion, in order to avoid fractions)
obtained by multiplying the number of Firm Securities set forth
opposite the name of such Selling Shareholder in Schedule A
hereto in each case by a fraction the numerator of which is the
number of Firm Securities set forth opposite the name of such
Underwriter in Schedule B hereto and the denominator of which
is the total number of Firm Securities.
Each Selling Shareholder specifically agrees that the
right to exercise the Warrants of such Selling Shareholder
which are held in custody for such Selling Shareholder under
the Custody Agreement is subject to the interests of the
Underwriters hereunder, and that the arrangement made by such
Selling Shareholder for the exercise of such Warrants pursuant
to the Custody Agreement and the appointment by such Selling
Shareholder of the Attorneys-in-Fact are to that extent
irrevocable. Each Selling Shareholder specifically agrees that
its obligations hereunder shall not be terminated by operation
of law, whether by the death or incapacity of any individual
Selling Shareholder or, in the case of an estate or trust, by
the death or incapacity of any executor or trustee or the
termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such
partnership or corporation, or by the occurrence of any other
event. If any individual Selling Shareholder or any such
executor or trustee should die or become incapacitated, or if
any such estate or trust should be terminated, or if any such
partnership or corporation should be dissolved, or if any other
such event should occur, before the delivery of the Offered
Securities hereunder, then the Warrants shall be exercised for
the Offered Securities to be delivered hereunder and
certificates representing such Offered Securities shall be
delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement and
of the Custody Agreement, and any and all actions taken by the
Attorneys-in-Fact pursuant to the Custody Agreement shall be as
valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination,
dissolution or other event.
The Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against
payment of the purchase price by certified or official bank
check or checks in New York Clearing House (next day) funds
drawn to the order of each Selling Shareholder (or, with
respect to any Selling Shareholder, to the extent requested by
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such Selling Shareholder, drawn to the order of the Company) at
the offices of Cahill Gordon & Reindel, 80 Pine Street, New
York, New York 10005, at A.M., New York time, on
September __, 1995, or at such other time not later than seven
full business days thereafter as CS First Boston and the
Selling Shareholders determine, such time being herein referred
to as the "First Closing Date". The certificates for the Firm
Securities so to be delivered will be in definitive form, in
such denominations and registered in such names as CS First
Boston requests and will be made available for checking and
packaging at the office of CS First Boston at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CS First Boston
given to the Company from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities at the
purchase price per Common Share to be paid for the Firm
Securities. Such Optional Securities shall be purchased from
the Company for the account of each Underwriter in the same
proportion as the number of Firm Securities set forth opposite
such Underwriter's name bears to the total number of Firm
Securities (subject to adjustment by CS First Boston to
eliminate fractions) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in
connection with the sale of the Firm Securities. No Optional
Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold
and delivered. The right to purchase the Optional Securities
or any portion thereof may be exercised from time to time and
to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CS First Boston to the
Company.
Each time for the delivery of and payment for the
Optional Securities, being herein referred to as an "Optional
Closing Date", which may be the First Closing Date (the First
Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "Closing Date"), shall be determined
by CS First Boston but shall be not later than five full
business days after written notice of election to purchase
Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several
Underwriters against payment of the purchase price therefor by
certified or official bank check or checks in New York Clearing
House (next day) funds drawn to the order of the Company at the
offices of Cahill Gordon & Reindel, 80 Pine Street, New York,
New York 10005. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in
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definitive form, in such denominations and registered in such
names as CS First Boston requests upon reasonable notice prior
to such Optional Closing Date and will be made available for
checking and packaging at the office of CS First Boston at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that
the several Underwriters propose to offer the Offered
Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the Company and the
Selling Shareholders. The Company agrees with the several
Underwriters and the Selling Shareholders that:
(a) If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if
consented to by CS First Boston, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second
business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise CS First Boston promptly of any
such filing pursuant to Rule 424(b). If the Effective
Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective
Time thereof has not occurred as of such execution and
delivery, the Company will file the additional
registration statement or, if filed, will file a post-
effective amendment thereto with the Commission pursuant
to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed
and distributed to any Underwriter, or will make such
filing at such later date as shall have been consented to
by CS First Boston.
(b) The Company will advise CS First Boston promptly
of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related
prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or
supplementation without CS First Boston's consent; and the
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Company will also advise CS First Boston promptly of the
effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery
of this Agreement) and of any amendment or supplementation
of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order
proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or
dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state
any material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at
any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CS First Boston of such
event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an
amendment which will effect such compliance. Neither CS
First Boston's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will
make generally available to its securityholders an
earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date
of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "Availability Date"
means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter
is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives
copies of each Registration Statement (three of which will
be signed and will include all exhibits), each related
preliminary prospectus, and, so long as delivery of a
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prospectus relating to the Offered Securities is required
to be delivered under the Act in connection with sales by
any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case
in such quantities as CS First Boston requests. The
Prospectus shall be so furnished on or prior to 10:00
A.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement.
All other such documents shall be so furnished as soon as
available. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification
of the Offered Securities for sale under the laws of such
jurisdictions as CS First Boston designates and will
continue such qualifications in effect so long as required
for the distribution; provided that in no event shall the
Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take
any action which would subject it to taxation or general
service of process in any jurisdiction where it is not now
so subject.
(g) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of
its annual report to shareholders for such year; and the
Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under
the Exchange Act or mailed to shareholders, and (ii) from
time to time, such other information concerning the
Company as CS First Boston may reasonably request.
(h) For a period of 90 days after the date of the
initial public offering of the Offered Securities, the
Company will not offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file with
the Commission a registration statement under the Act
relating to, any additional Common Shares or securities
convertible into or exchangeable or exercisable for any
Common Shares without the prior written consent of CS
First Boston, except issuances of Common Shares pursuant
to the exercise of warrants or options, in each case
outstanding on the date hereof, and grants of stock
options, restricted stock or other stock-based awards to
directors, officers or employees of the Company or its
subsidiaries.
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The Company agrees with the several Underwriters that
the Company will pay all expenses incident to the performance
of the obligations of the Company and the Selling Shareholders
under this Agreement, and will reimburse the Underwriters (if
and to the extent incurred by them) for any filing fees and
other expenses (including fees and disbursements of counsel)
incurred by them in connection with qualification of the
Offered Securities for sale under the laws of such
jurisdictions as CS First Boston designates and the printing of
memoranda relating thereto, for any travel expenses of the
Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities, for any
transfer taxes on the sale by the Selling Shareholders of the
Offered Securities to the Underwriters and for expenses
incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto)
to the Underwriters; provided that as between the Company and
the Selling Shareholders their relative obligations to pay
shall be in such manner as the Company and the Selling
Shareholders have agreed or shall agree.
Each Selling Shareholder agrees to deliver to CS
First Boston, attention: Transactions Advisory Group on or
prior to the First Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
Each Selling Shareholder agrees, for a period of 90
days after the date of the initial public offering of the
Offered Securities, not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any additional
Common Shares or securities convertible into or exchangeable or
exercisable for any Common Shares without the prior written
consent of CS First Boston, except in connection with pledges.
6. Conditions of the Obligations of the
Underwriters. The obligations of the several Underwriters to
purchase and pay for the Firm Securities on the First Closing
Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy in all
material respects of the representations and warranties on the
part of the Company and the Selling Shareholders herein, to the
accuracy of the statements of Company officers made pursuant to
the provisions hereof, to the performance by the Company and
the Selling Shareholders of their obligations hereunder and to
the following additional conditions precedent:
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(a) The Representatives shall have received a
letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of
Coopers & Lybrand L.L.P. confirming that they are
independent public accountants within the meaning of the
Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the
Registration Statements comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public
Accountants for a review of interim financial
information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on
the unaudited financial statements included in the
Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available
interim financial statements of the Company,
inquiries of officials of the Company who have
responsibility for financial and accounting matters
and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not
comply as to form in all material respects with
the applicable accounting requirements of the
Act and the related published Rules and
Regulations or any material modifications should
be made to such unaudited financial statements
for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, and at a
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subsequent specified date not more than five
days prior to the date of this Agreement, there
was any change in the capital stock or any
increase in short-term indebtedness or long-term
debt of the Company and its consolidated
subsidiaries or there was any decrease in
consolidated net current assets or net assets of
the Company and its consolidated subsidiaries,
as compared with amounts shown on the latest
balance sheet included in the Prospectus; or
(C) for the period from the closing date
of the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such
accountants and a subsequent specified date not
more than five days prior to the date of this
Agreement there were any decreases, as compared
with the corresponding period of the previous
year, in consolidated net sales or net operating
income in the total or per share amounts of
consolidated income before extraordinary items
or net income;
except in all cases set forth in clauses (B) and (C) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly
from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of
the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, "Registration
Statements" shall mean the initial registration statement as
proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time,
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(ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery,
"Registration Statements" shall mean the Initial Registration
Statement and the additional registration statement as proposed
to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and
(iii) "Prospectus" shall mean the prospectus included in the
Registration Statements. All financial statements and
schedules included in material incorporated by reference into
the Prospectus shall be deemed included in the Registration
Statements for purposes of this subsection.
(b) If the Effective Time of the Initial
Registration Statement is not prior to the execution and
delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been
consented to by CS First Boston. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been
consented to by CS First Boston. If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to
the knowledge of any Selling Shareholder, the Company or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event [involving a prospective change], in the
condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a
whole which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment
for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public
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announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company
[(other than an announcement with positive implications of a
possible upgrading and no implication of a possible downgrading
of such rating)]; (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by
Congress or any other substantial national or international
calamity or emergency if, in the judgment of a majority in
interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Underwriters shall have received an opinion,
dated such Closing Date, of Weil, Gotshal & Manges, counsel for
the Company and the Selling Shareholders, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of New York, with all requisite
corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and,
to such counsel's knowledge, is duly qualified to transact
business and is in good standing as a foreign corporation
in each jurisdiction where the nature of its business
requires such qualification except where the failure of
the Company to be so qualified would not, singly or in the
aggregate, have a materially adverse effect on the
condition (financial or otherwise), earnings or business
of the Company and the Subsidiaries (as defined below),
considered as a whole (solely for purposes of this
Section 6(d), a "Material Adverse Effect");
(ii) Each of Leucadia, Inc. and LNC Investments, Inc.
and any other corporation of which the Company owns more
than 50% of the outstanding capital stock, directly or
indirectly, and which contributed 10% or more of the
Company's consolidated revenues for the year ended
December 31, 1994 or which represented 10% or more of the
Company's consolidated total assets at December 31, 1994,
which information may be based upon a certificate of an
officer of the Company (collectively, solely for purposes
of this Section 6(d), the "Subsidiaries") (other than
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Charter National Life Insurance Company ("Charter"),
Empire Insurance Company ("Empire") and Colonial Penn
Group, Inc. ("CPG") and its subsidiaries (collectively,
the "Insurance Subsidiaries") and other than Phlcorp, Inc.
("Phlcorp")) has been duly incorporated and is validly
existing as a corporation in good standing under the laws
of the jurisdiction in which it is organized, with all
requisite corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and, to the best knowledge of such counsel, is
duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction
where the nature of its activities requires such
qualification, except where the failure of such Subsidiary
to be so qualified would not, singly or in the aggregate,
have a Material Adverse Effect;
(iii) To the knowledge of such counsel, all the
outstanding shares of capital stock of each Subsidiary
(other than the Insurance Subsidiaries and Phlcorp) have
been duly authorized and validly issued and are fully paid
and non-assessable, and, except as otherwise set forth in
each Registration Statement and the Prospectus, to such
counsel's knowledge, all outstanding shares of capital
stock of such Subsidiaries (other than the Insurance
Subsidiaries and Phlcorp) are owned by the Company, either
directly or through wholly-owned Subsidiaries, free and
clear of any security interests, claims, liens or
encumbrances;
(iv) Such counsel does not know of any pending or
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of the Subsidiaries required
to be disclosed in a Registration Statement or the
Prospectus, which is not adequately disclosed therein, or
any franchise, contract or other document that is material
to the Company and its Subsidiaries, considered as a
whole, and required to be described in each Registration
Statement or the Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(v) (a) The Initial Registration Statement was
declared effective under the Act [as of the date]
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under
the Act as [of the date] specified in such opinion;
(b) any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by
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Rule 424(b); and (c) to the knowledge of such counsel, no
stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or
threatened under the Act, and each Registration Statement
and the Prospectus, and each amendment or supplement
thereto (other than the financial statements (including
the notes thereto) and schedules and other financial and
statistical data contained or incorporated by reference
therein, as to which such counsel need express no
opinion), as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations;
(vi) The Company meets the requirements for the use
of Form S-3 under the Act;
(vii) (a) Each Registration Statement and the
Prospectus (other than the financial statements (including
the notes thereto) and schedules and other financial and
statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the
applicable requirements of the Act and the rules
thereunder; and (b) the Incorporated Documents (other than
the financial statements (including the notes thereto) and
schedules and other financial and statistical data
contained or incorporated by reference therein, as to
which such counsel need express no opinion), when filed,
or as amended or supplemented, complied as to form in all
material respects with the requirements of the Exchange
Act;
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and duly executed
and delivered by or on behalf of each Selling Shareholder;
(ix) No consent, approval, authorization or order of
any New York, Delaware corporate or federal governmental
agency or body or, to the knowledge of such counsel, any
court, is required for the consummation of the
transactions contemplated hereby, except such as have been
obtained under the Act and such as may be required under
the blue sky or insurance laws of any jurisdiction in
connection with the purchase and distribution of the
Offered Securities by the Underwriters (as to which such
counsel need express no opinion);
(x) Neither the issuance and sale of the Offered
Securities, nor the consummation of any other of the
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transactions herein contemplated, nor the fulfillment of
the terms hereof, will conflict with, result in a breach
of, or constitute a default under, the terms of any
indenture or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is
bound or any order, regulation, consent or memorandum of
understanding of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of the
Subsidiaries of which such counsel is aware and known by
such counsel to be applicable to the Company or any of the
Subsidiaries (where such conflict, breach or default
would, singly or in the aggregate, have a Material Adverse
Effect) or the charter or by-laws of the Company;
(xi) The Common Shares (including the Offered
Securities, when issued) conform (or will conform) in all
material respects to the description thereof contained in
each Registration Statement and the Prospectus; and the
Firm Securities have been duly authorized for issuance
upon exercise of the Warrants and, when issued and
delivered to the Selling Shareholders by the Company upon
exercise of the Warrants against payment of the exercise
price therefor set forth in the Warrants, will be validly
issued and fully paid and non-assessable, except as
provided pursuant to Section 630 of the New York Business
Corporation Law (the "NYBCL"), and, to such counsel's
knowledge, will not have been issued in violation of any
preemptive rights or other rights to subscribe for or
purchase securities;
(xii) The Optional Securities have been duly
authorized for issuance and sale to the Underwriters
pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment
of the consideration set forth herein, will be validly
issued and fully paid and non-assessable, except as
provided pursuant to Section 630 of the NYBCL, and, to
such counsel's knowledge, will not have been issued in
violation of any preemptive rights or other rights to
subscribe for or purchase securities;
(xiii) Each of the Warrants has been duly and validly
authorized by the Company and constitutes a valid and
legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
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equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding in equity or at
law);
(xiv) The Company has authorized and reserved
sufficient capital stock free of preemptive or other
rights to subscribe for or purchase securities for the
purpose of enabling the Company to satisfy its outstanding
obligation to issue the Firm Securities upon exercise of
the Warrants;
(xv) The Company's outstanding Common Shares (other
than the Offered Securities) have been duly authorized and
validly issued and are fully paid and non-assessable; and
the shareholders of the Company have no preemptive rights
with respect to such Common Shares;
(xvi) The form of certificate for the Offered
Securities conforms to the requirements of the New York
Business Corporation Law;
(xvii) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus;
(xviii) The Company is not (a) an "investment company"
within the meaning of the Investment Company Act of 1940,
as amended, or (b) a bank holding company under the Bank
Holding Company Act of 1970, as amended;
(xix) Other than the Warrants, there are no contracts,
agreements or understandings known to such counsel between
the Company and any person granting such person the right
to require the Company to file a registration statement
under the Act with respect to any securities of the
Company owned or to be owned by such person or to require
the Company to include such securities in the securities
registered pursuant to a Registration Statement;
(xx) None of the sale of the Firm Securities by any
Selling Shareholder hereunder, the execution and delivery
of this Agreement, the Power of Attorney or the Custody
Agreement by any such Selling Shareholder, or the
consummation of any other of the transactions herein
contemplated, or the fulfillment of the terms hereof, will
conflict with, result in a breach of or constitute a
default under the terms of any indenture or other
agreement or instrument known to such counsel to which
such Selling Shareholder is a party or bound or any order,
regulation, consent or memorandum of understanding of any
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court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over
such Selling Shareholder of which such counsel is aware
and known by such counsel to be applicable to such Selling
Shareholder or, if such Selling Shareholder is other than
a natural person, the organizational documents of such
Selling Shareholder;
(xxi) [Each Selling Shareholder has good and
marketable title to the Warrants pursuant to which the
Firm Securities are to be acquired by such Selling
Shareholder, in each such case, free and clear of any
pledge, lien, security interest, encumbrance, claim or
equity other than pursuant to this Agreement and the
Custody Agreement;] such Selling Shareholder has full
right, power and authority to enter into this Agreement,
the Power of Attorney and the Custody Agreement, to
exercise the Warrants for the Firm Securities to be sold
by such Selling Shareholder hereunder and upon the
exercise of such Warrants to sell, transfer and deliver
such Firm Securities to the Underwriters hereunder; and
upon delivery of the Firm Securities to be sold by such
Selling Shareholder hereunder and payment of the purchase
price therefor as herein contemplated, each of the
Underwriters will receive good and marketable title to its
ratable share of the Firm Securities purchased by it from
such Selling Shareholder, free and clear of any pledge,
lien, security interest, encumbrance, claim or equity,
assuming the Underwriters acquire the Firm Securities
without notice of any adverse claim as such term is used
in Section 8-302 of the Uniform Commercial Code in effect
in the State of New York (it being understood and agreed
that Pinnacle Consultants, Ltd. v. Leucadia National
Corporation, et al. (C.A. No. 94 Civ. 3496) and the
allegations referred to and relief requested therein shall
not be deemed to be such an adverse claim);
(xxii) Each Selling Shareholder has duly executed and
delivered the Power of Attorney with Ian M. Cumming,
Joseph S. Steinberg and Joseph A. Orlando or each of them,
as Attorneys-in-Fact, and the Custody Agreement with Weil,
Gotshal & Manges, as Custodian; the Attorneys-in-Fact, or
any one of them, are authorized to execute and deliver
this Agreement on behalf of such Selling Shareholder, to
determine the purchase price for such Selling
Shareholder's Firm Securities to be paid by the
Underwriters to such Selling Shareholder, as provided
herein to exercise the Warrants which are exercisable for
such Firm Securities, to authorize the delivery of such
Firm Securities to the Underwriters hereunder, to accept
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payment therefor, and otherwise to act on behalf of such
Selling Shareholder in connection with this Agreement; and
(xxiii) No consent, approval, authorization or order of
any New York, Delaware corporate or federal governmental
agency or body or, to the knowledge of such counsel, any
court, is required for the execution and delivery by or on
behalf of each Selling Shareholder of this Agreement, the
Power of Attorney or the Custody Agreement, the exercise
of the Warrants for the Firm Securities to be sold by such
Selling Shareholder hereunder, the sale and delivery by
such Selling Shareholder of such Firm Securities
hereunder, or the consummation of the other transactions
contemplated hereby, except such as have been obtained
under the Act and such as may be required under the blue
sky or insurance laws of any jurisdiction in connection
with the purchase and distribution of such Firm Securities
by the Underwriters (as to which such counsel need express
no opinion).
In addition, such counsel shall also state that such
counsel have participated in conferences with the
Representatives, officers and other representatives of the
Company and its subsidiaries and representatives of the
independent certified public accountants of the Company at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, although
such counsel have not independently verified and are not
passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement and the Prospectus (except as set
forth in the first clause of clause (xi) of this Section 6(d)),
on the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the
attention of such counsel which lead such counsel to believe
that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus at its date of issuance, or at the Closing
Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to
be stated therein or necessary to make the statements contained
therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel need not
express any view with respect to the financial statements
(including the notes thereto), supporting schedules or any
other financial and statistical data set forth or referred to
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or incorporated by reference in the Registration Statement or
the Prospectus.
In rendering such opinion, such counsel may rely (A)
as to matters involving the application of laws of any
jurisdiction other than New York, Delaware corporate or the
federal laws of the United States, to the extent they deem
proper and specify in such opinion, upon the opinions of other
counsel and (B) as to matters of fact, to the extent they deem
proper, on representations or certificates of the Selling
Shareholders or responsible officers of the Company and
certificates of public officials. References to the Prospectus
in this Section 6(d) include any supplements thereto at or
prior to the Closing Date.
(e) The General Counsel or Compliance Officer, as
the case may be, of each of Charter, Empire and CPG and its
subsidiaries shall have furnished to the Underwriters their
opinions or certificates, as the case may be, dated the Closing
Date, to the effect that:
(i) The applicable Insurance Subsidiary has been
duly incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction in
which it is chartered or organized, with all requisite
corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and
is duly qualified to transact business and is in good
standing as a foreign corporation in each jurisdiction
where the nature of its activities requires such
qualification, except where the failure of such Insurance
Subsidiary to be so qualified would not, singly or in the
aggregate, have a materially adverse effect on the
condition (financial or otherwise), earnings or business
of such Insurance Subsidiary (solely for purposes of this
Section 6(e), a "Material Adverse Effect");
(ii) To the knowledge of such counsel or officer, as
the case may be, all the outstanding shares of capital
stock of such Insurance Subsidiary have been duly
authorized and validly issued and are fully paid and non-
assessable, and, except as otherwise set forth in each
Registration Statement and the Prospectus, all outstanding
shares of capital stock of such Insurance Subsidiary are
owned by the Company, either directly or through wholly-
owned Subsidiaries, free and clear of any security
interests, claims, liens or encumbrances;
(iii) To the knowledge of such counsel or officer, as
the case may be, each of the applicable Insurance
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Subsidiaries has all necessary federal, state or local
governmental licenses, authorizations, consents, approvals
and have made all necessary filings required under any
federal, state or local law, regulation or rule in order
to conduct its respective business, except where the
failure to be so licensed, have such authorizations,
consents or approvals or to have made such filings would
not, singly or in the aggregate, have a Material Adverse
Effect; and to the knowledge of such counsel or officer,
as the case may be, such Insurance Subsidiary is not in
violation of, or in default under, any such license,
authorization, consent or approval or any federal, state
or local law, regulation or rule or any decree, order or
judgment applicable to such Insurance Subsidiary, except
where such violation or default would not, singly or in
the aggregate, have a Material Adverse Effect; and
(iv) Each applicable Insurance Subsidiary which is an
insurer or an insurance holding company is duly licensed
or admitted as an insurer or an insurance holding company
in each jurisdiction where it is required to be so
licensed to conduct its respective businesses as described
in the Prospectus, and each has all other necessary
authorizations, approvals, orders, certificates and
permits of and from all insurance authorities, commissions
or other insurance or other applicable regulatory
authorities to conduct their respective businesses as
described in the Prospectus, except where the failure to
be so licensed or admitted or to have such authorizations,
approvals, orders, certificates and permits would not,
singly or in the aggregate, have a Material Adverse
Effect.
(f) The Company shall have furnished to the
Underwriters the opinion of Dilworth, Paxson, Kalish &
Kauffman, counsel for Phlcorp, dated the Closing Date, to the
effect that:
(i) Phlcorp has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the jurisdiction in which it is chartered or
organized, with all requisite corporate power and
authority to own its properties and conduct its business
as described in the Prospectus, and is duly qualified to
transact business and is in good standing as a foreign
corporation in each jurisdiction where the nature of its
activities requires such qualification, except where the
failure of Phlcorp to be so qualified would not, singly or
in the aggregate, have a Material Adverse Effect; and
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(ii) To the knowledge of such counsel, all the
outstanding shares of capital stock of Phlcorp have been
duly authorized and validly issued and are fully paid and
non-assessable, and, except as otherwise set forth in each
Registration Statement and the Prospectus, all outstanding
shares of capital stock of Phlcorp are owned by the
Company, free and clear of any security interests, claims,
liens or encumbrances.
(g) The Representatives shall have received from
Cahill Gordon & Reindel, counsel for the Underwriters, the
favorable opinion with respect to the matters set forth in
clauses (v) (as to the effectiveness of the Registration
Statements only), (vii) (clause (a) only), (viii) (only as to
the Company) and (xi) (first clause only) of Section 6(d).
In addition, such counsel shall also state that such
counsel have participated in conferences with the Representa-
tives, officers and other representatives of the Company and
its subsidiaries, counsel for the Company and the Selling
Shareholders and representatives of the independent public
accountants for the Company at which the contents of the
Registration Statements and the Prospectus and related matters
were discussed and, although such counsel are not passing upon
and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as set forth
in the first clause of clause (xi) of Section 6(d)), on the
basis of the foregoing (relying as to materiality to a large
extent upon the opinions of officers and other representatives
of the Company), no facts have come to the attention of such
counsel which lead such counsel to believe that any
Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus at its date of its issuance, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, that such
counsel need express no comment with respect to the financial
statements (including the notes thereto), supporting schedules
or any other financial or statistical data set forth or
referred to or incorporated by reference in any Registration
Statement or the Prospectus.
(h) The Representatives shall have received a
certificate, dated such Closing Date, of the President or any
Vice-President and a principal financial or accounting officer
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of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that:
the representations and warranties of the Company in this
Agreement are true and correct in all material respects; the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder
at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and
no proceedings for that purpose have been instituted or
threatened; the Additional Registration Statement (if any)
satisfying the requirements of subparagraphs (1) and (3) of
Rule 462(b) was filed pursuant to Rule 462(b), including
payment of the applicable filing fee in accordance with Rule
111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent
to the dates of the most recent financial statements in the
Prospectus, there has been no Material Adverse Change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such
certificate.
(i) The Representatives shall have received a
certificate, dated such Closing Date, of Ian M. Cumming, Joseph
S. Steinberg or Joseph A. Orlando, as Attorney-in-Fact for each
of the Selling Shareholders in which such person, to the best
of his knowledge after reasonable investigation, shall state
that the representations and warranties of each Selling
Shareholder in this Agreement are true and correct in all
material respects and that each Selling Shareholder has
complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to
such Closing Date.
(j) The Representatives shall have received a
letter, dated such Closing Date, of Coopers & Lybrand L.L.P.
which meets the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection
will be a date not more than five days prior to such Closing
Date for the purposes of this subsection.
The Selling Shareholders and the Company will furnish the
Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives
reasonably request. CS First Boston may in its sole discretion
waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
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7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in
or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being
understood and agreed that the only such information furnished
by any Underwriter consists of the information described as
such in subsection (c) below; and provided, further, that with
respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus the
indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter that sold the Offered
Securities concerned to the person asserting any such losses,
claims, damages or liabilities, to the extent that such sale
was an initial resale by such Underwriter and any such loss,
claim, damage or liability of such Underwriter results from the
fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive
of any documents incorporated by reference therein) if the
Company had previously furnished copies thereof to such
Underwriter.
(b) Ian M. Cumming and Joseph S. Steinberg
(collectively, the "Indemnifying Selling Shareholders"),
jointly and severally, will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
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statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Indemnifying Selling Shareholders will not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the
Company by an Underwriter through the Representatives
specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter
consists of the information described as such in subsection (c)
below; and provided, further, that with respect to any untrue
statement or omission or alleged untrue statement or omission
made in any preliminary prospectus the indemnity agreement
contained in this subsection (b) shall not inure to the benefit
of any Underwriter that sold the Firm Securities concerned to
the person asserting any such losses, claims, damages or
liabilities, to the extent that such sale was an initial resale
by such Underwriter and any such loss, claim, damage or
liability of such Underwriter results from the fact that there
was not sent or given to such person, at or prior to the
written confirmation of the sale of such Firm Securities to
such person, a copy of the Prospectus (exclusive of any
documents incorporated by reference therein) if the Company had
previously furnished copies thereof to such Underwriter.
(c) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and each Selling
Shareholder against any losses, claims, damages or liabilities
to which the Company or such Selling Shareholder may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
<PAGE>
<PAGE>
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by
such Underwriter through the Representatives specifically for
use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company and each Selling Shareholder
in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of
each Underwriter: the last paragraph at the bottom of the
cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments and
stabilizing on the inside front cover page and the concession
and reallowance figures appearing in the fourth paragraph under
the caption "Underwriting."
(d) The Selling Shareholders will indemnify and hold
harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that each Selling Shareholder will only be liable in
any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity
with written information furnished to the Company by such
Selling Shareholder specifically for use therein; and provided,
further, that with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary
prospectus the indemnity agreement contained in this subsection
(d) shall not inure to the benefit of any Underwriter that sold
the Firm Securities concerned to the person asserting any such
losses, claims, damages or liabilities, to the extent that such
sale was an initial resale by such Underwriter and any such
loss, claim, damage or liability of such Underwriter results
from the fact that there was not sent or given to such person,
at or prior to the written confirmation of the sale of such
<PAGE>
<PAGE>
Firm Securities to such person, a copy of the Prospectus
(exclusive of any documents incorporated by reference therein)
if the Company had previously furnished copies thereof to such
Underwriter.
(e) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party under subsection (a),
(b), (c) or (d) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under
subsection (a), (b), (c) or (d) above. In case any such action
is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and,
to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of
such action.
(f) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a), (b), (c) or (d) above,
then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a), (b), (c) or (d) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits
<PAGE>
<PAGE>
referred to in clause (i) above but also the relative fault of
the Company and the Selling Shareholders on the one hand and
the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company
and the Selling Shareholders on the one hand and the
Underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Shareholders
bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates
to information supplied by the Company, the Selling
Shareholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first
sentence of this subsection (f) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action
or claim which is the subject of this subsection (f).
Notwithstanding the provisions of this subsection (f), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (f) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(g) The obligations of the Company and the Selling
Shareholders under this Section shall be in addition to any
liability which the Company and the Selling Shareholders may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to
<PAGE>
<PAGE>
each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
The liability of any Selling Shareholder for indemnification
under this Section 7 shall not exceed an amount equal to the
total net proceeds (before deducting expenses) received by such
Selling Shareholder from the sale of the Firm Securities by
such Selling Shareholder hereunder
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Offered
Securities hereunder on either the First or any Optional
Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total
number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date, CS First Boston
may make arrangements satisfactory to the Company and the
Selling Shareholders for the purchase of such Offered
Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to
purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing
Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the
total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and
arrangements satisfactory to CS First Boston, the Company and
the Selling Shareholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability
on the part of any non-defaulting Underwriter, the Company or
the Selling Shareholders, except as provided in Section 9
(provided that if such default occurs with respect to Optional
Securities after the First Closing Date, this Agreement will
not terminate as to the Firm Securities or any Optional
Securities purchased prior to such termination). As used in
this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the Selling
Shareholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement
<PAGE>
<PAGE>
will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by
or on behalf of any Underwriter, any Selling Shareholder, the
Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery
of and payment for the Offered Securities. If this Agreement
is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not
consummated, the Company and the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by
them pursuant to Section 5 and the respective obligations of
the Company, the Selling Shareholders, and the Underwriters
pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase
of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v)
of Section 6(c), the Company will reimburse the Underwriters
for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be
in writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives,
c/o CS First Boston Corporation, Park Avenue Plaza, New York,
N.Y. 10055, Attention: Investment Banking Department-
Transactions Advisory Group, or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at 315
Park Avenue South, New York, New York 10010, Attention:
Secretary of the Company, with a copy to Weil, Gotshal &
Manges, 767 Fifth Avenue, New York, New York 10153, Attention:
Stephen E. Jacobs, Esq., or, if sent to the Selling
Shareholders or any of them, will be mailed, delivered or
telegraphed and confirmed to Ian M. Cumming, Leucadia National
Corporation, 529 East South Temple, Salt Lake City, Utah 84102
and Joseph S. Steinberg, Leucadia National Corporation,
315 Park Avenue South, New York, New York 10010, with a copy to
Weil, Gotshal & Manges, 767 Fifth Avenue, New York, New York
10153, Attention: Stephen E. Jacobs, Esq.; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective personal representatives and successors and the
<PAGE>
<PAGE>
officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or
obligation hereunder.
12. Representation. The Representatives will act
for the several Underwriters in connection with the
transactions contemplated by this Agreement, and any action
under this Agreement taken by the Representatives, jointly or
by CS First Boston will be binding upon all the Underwriters.
Ian M. Cumming, Joseph S. Steinberg and Joseph A. Orlando or
any of them will act for the Selling Shareholders in connection
with such transactions, and any action under or in respect of
this Agreement taken by Ian M. Cumming, Joseph S. Steinberg and
Joseph A. Orlando or any of them will be binding upon all the
Selling Shareholders.
13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together
constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York, without regard to principles of conflicts of
laws.
The parties hereto hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the transaction
contemplated hereby.
<PAGE>
<PAGE>
If the foregoing is in accordance with the
Representatives' understanding of our agreement, kindly sign
and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement among the Selling
Shareholders, the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
SELLING SHAREHOLDERS LISTED ON
SCHEDULE A HERETO
By:___________________________
, as
Attorney-in-Fact
LEUCADIA NATIONAL CORPORATION
By:____________________________
[Insert title]
The foregoing Underwriting Agreement is hereby confirmed and
accepted as of the date first above written.
CS FIRST BOSTON CORPORATION
JEFFERIES & COMPANY, INC.
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By: CS FIRST BOSTON CORPORATION
By: ______________________________
[Insert title]
<PAGE>
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of Initial
Name Securities To Be Sold
<S> <C>
Ian M. Cumming.................................. 690,000
Annette P. Cumming.............................. 50,000
Trustee, under Agreement
dated January 3, 1979 for
John Darnaby Cumming Age
21 Trust
Annette P. Cumming.............................. 50,000
Trustee, under Agreement
dated January 3, 1979 for
David Edward Cumming Age
21 Trust
John D. Cumming................................. 2,000
Jennifer Cumming Ruff........................... 4,000
Margaret Cumming................................ 4,000
Joseph S. Steinberg............................. 794,000
_________
Total............................. 1,594,000
</TABLE>
<PAGE>
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Number of
Firm Securities
Underwriter To Be Purchased
<S> <C>
CS First Boston Corporation ....................
Jefferies & Company, Inc. ......................
_________
Total ............ 1,594,000
</TABLE>
<PAGE>
<PAGE>
EXHIBIT A
LEUCADIA NATIONAL CORPORATION
Public Offering of Common Shares
Irrevocable Power of Attorney of Selling Shareholder
Leucadia National Corporation
315 Park Avenue South
New York, New York 10010
The undersigned (the "Selling Shareholder")
understands that pursuant to a certain Underwriting Agreement
(the "Underwriting Agreement") to be entered into among
Leucadia National Corporation (the "Company"), CS First Boston
Corporation ("First Boston"), Jefferies & Company, Inc.
("Jefferies") and each of the other underwriters named in
Schedule B thereto (the "Underwriters") for whom First Boston
and Jefferies are acting as representatives (in such capacity,
First Boston and Jefferies shall hereinafter be referred to as
the "Representatives") and the selling shareholders (including
the Selling Shareholder) named in Schedule A thereto (the
"Selling Shareholders"), the Selling Shareholders will sell
common shares, par value $1.00 per share (the "Common Shares"),
of the Company to the Underwriters who propose to offer such
Common Shares to the public. The Common Shares to be sold by
the Selling Shareholder are issuable upon the exercise of
Warrants to Purchase Common Shares (the "Warrants"). Each
Warrant entitles the holder thereof to purchase one Common
Share at an exercise price of $20.1875 per share. The
undersigned also understands that, in connection with such
offer and sale, the Company has filed a Registration Statement
("Registration Statement") with the Securities and Exchange
Commission ("Commission") to register the Common Shares to be
offered under the Securities Act of 1933, as amended.
Concurrently with the execution and delivery of this
Power of Attorney, the undersigned is also executing and
delivering a Custody Agreement (the "Custody Agreement")
pursuant to which Warrants exercisable for at least the number
of Common Shares to be sold by the undersigned pursuant to the
Underwriting Agreement are being deposited with Weil, Gotshal &
Manges, as custodian ("Custodian").
1. In connection with the foregoing, the
undersigned hereby irrevocably constitutes and appoints Ian M.
<PAGE>
<PAGE>
Cumming, Joseph S. Steinberg and Joseph A. Orlando, or each of
them, as attorneys-in-fact (individually, an "Attorney" and
collectively, the "Attorneys") of the undersigned, each with
full power and authority to act together or alone, including
full power of substitution, in the name of and for and on
behalf of the undersigned with respect to all matters arising
in connection with the exercise of the Warrants for the Common
Shares to be sold by the undersigned pursuant to the
Underwriting Agreement and the sale of such Common Shares by
the undersigned thereunder, including, but not limited to, the
power and authority to take any and all of the following
actions:
(a) to exercise the Warrants for the number of
Common Shares to be sold to the Underwriters specified
below and to sell, assign and transfer such Common Shares
to the Underwriters pursuant to the Underwriting Agreement
at a purchase price per share to be paid by the
Underwriters, as determined by negotiation among the
Company, the Attorneys (or Ian M. Cumming or Joseph S.
Steinberg, as Attorneys) and the Representatives;
(b) for the purpose of effecting such sale, to make,
execute, deliver and perform the undersigned's obligations
under the Underwriting Agreement substantially in the form
of the agreement filed as an exhibit to the Registration
Statement, receipt of a copy of which is hereby
acknowledged, and containing such additions to or changes
in the terms, provisions and conditions thereof, as the
Attorneys, or any one of them, in their or his sole
discretion, shall determine, including the purchase price
per share to be paid by the Underwriters and including any
additions to or changes in the terms, provisions and
conditions thereof relating to the public offering of such
Common Shares by the Underwriters;
(c) to give such orders and instructions to the
Underwriters, the Custodian, any warrant agent with
respect to the Warrants and the transfer agent for the
Common Shares as the Attorneys, or any one of them, in
their or his sole discretion, shall determine, with
respect to (i) the exercise of the Warrants for the Common
Shares to be sold by the undersigned pursuant to the
Underwriting Agreement, (ii) the transfer on the books of
the Company of such Common Shares in order to effect such
sale including giving the name in which new certificates
for such Common Shares are to be issued and the
denominations thereof, (iii) the delivery to or for the
account of the Underwriters of certificates for such
Common Shares against receipt by the Attorneys or any one
<PAGE>
<PAGE>
of them of the purchase price to be paid therefor, (iv)
the payment to the Company out of the proceeds of such
sale of the exercise price of the Warrants, (v) the
payment by the Attorneys or any one of them out of the
proceeds of such sale of that portion of all expenses of
the registration, offer, sale and delivery of such Common
Shares that is to be borne by the undersigned in
connection with such offer, sale and delivery and (vi) the
remittance to the undersigned of new certificates
representing that number of Common Shares, if any, that is
in excess of the number of Common Shares sold by the
undersigned pursuant to the Underwriting Agreement or
Warrants exercisable for such Common Shares, if any;
(d) to receive payment for such Selling
Shareholder's Common Shares to be sold to the Underwriters
(such payment to be made by the Representatives in the
form of a certified or official bank check or checks
payable in New York Clearing House (next day) funds to the
order of the Selling Shareholder and, to the extent
requested, to the order of the Company, in an aggregate
amount equal to the purchase price of such Common Shares),
upon delivery of the appropriate number of Common Shares,
all in accordance with the terms and conditions of the
Underwriting Agreement, this Agreement and the Custody
Agreement and to request payment from the Representatives
of a portion of the purchase price of such Common Shares
to the order of the Company;
(e) upon receipt of such payment from the
Representatives, to promptly forward to the Selling
Shareholder such certified or official bank check or
checks for the purchase price for the Common Shares to be
sold by such Selling Shareholder, as set forth in the
Underwriting Agreement and, to deliver to the Company
against receipt therefor, as payment of the exercise price
for the Warrants exercisable for such Common Shares, any
such certified or official bank check or checks which are
payable to the order of the Company;
(f) to retain legal counsel in connection with any
and all matters referred to herein (which counsel may, but
need not, be counsel for the Company and the other Selling
Shareholders);
(g) to execute and deliver any amendment to the
Custody Agreement; provided, however, that no such
amendment shall increase the number of Common Shares to be
sold by the undersigned above the number of Common Shares
specified below to be sold to the Underwriters;
<PAGE>
<PAGE>
(h) to endorse (in blank or otherwise) on behalf of
the undersigned the certificate or certificates
representing the Common Shares to be sold by the
undersigned or, the certificates or certificates
representing Warrants exercisable for such Common Shares,
or the stock power or powers attached to any such
certificate or certificates or Warrants;
(i) to make, acknowledge, verify and file on behalf
of the undersigned applications, consents to service of
process and such other documents, undertakings or reports
as may be required by law or may be advisable to implement
the sale of the Common Shares pursuant to the Underwriting
Agreement with state commissioners or officers
administering state securities or insurance laws; and
(j) to make, exchange, acknowledge and deliver all
such other contracts, powers of attorney, orders,
receipts, notices, requests, instructions, certificates,
letters and other writings, including communications to
the Commission, and amendments to the Underwriting
Agreement, and in general to do all things and to take all
actions, that the Attorneys, or any one of them, in their
or his sole discretion, may consider necessary or proper
in connection with or to carry out the aforesaid sale of
Common Shares pursuant to the Underwriting Agreement and
the public offering thereof, as fully as could the
undersigned if personally present and acting.
2. This Power of Attorney and all authority
conferred hereby are granted and conferred subject to the
interests of the Underwriters and in consideration of those
interests, and for the purpose of completing the transactions
contemplated by the Underwriting Agreement and this Power of
Attorney; this Power of Attorney and all authority conferred
hereby shall be irrevocable and shall not be terminated by the
undersigned or by operation of law, whether by the death or
incapacity of the undersigned, or by the occurrence of any
other event. If any event described in the preceding sentence
shall occur before the delivery of the Common Shares to be sold
by the undersigned pursuant to the Underwriting Agreement, then
the Warrants deposited with the Custodian shall be exercised
for such Common Shares, certificates for such Common Shares
shall be delivered by or on behalf of the undersigned in
accordance with the terms and conditions of the Underwriting
Agreement and the Custody Agreement, all other actions required
to be taken under the Underwriting Agreement and the Custody
Agreement shall be taken, and any action taken by the
Attorneys, or any one of them, pursuant to this Power of
Attorney, shall be as valid as if such event had not occurred,
<PAGE>
<PAGE>
whether or not the Custodian or the Attorneys or any one of
them shall have received notice of such event.
Notwithstanding the foregoing, if the Underwriting
Agreement shall not be entered into and the transactions
contemplated thereby consummated prior to the forty-fifth day
after the date of this Power of Attorney, then from and after
such date, this Power of Attorney shall be terminated; subject,
however, to all lawful action done or performed by the
Attorneys, or any one of them, pursuant to this Power of
Attorney prior to such date.
3. The undersigned ratifies all that the Attorneys,
or any one of them, have done or shall do pursuant to
paragraphs 1 and 2 of this Power of Attorney.
4. The Attorneys shall be entitled to act and rely
upon any statement, request, notice or instructions respecting
this Power of Attorney given to the Attorneys by the
undersigned; provided, however, that the Attorneys shall not be
entitled to act on any statement or notice to the Attorneys
with respect to the Closing Date under the Underwriting
Agreement, or with respect to the termination of the
Underwriting Agreement, or advising that the Underwriting
Agreement has not been executed and delivered, unless such
statement or notice shall have been confirmed in writing to the
Attorneys by the Representatives.
5. The undersigned hereby agrees to indemnify and
hold harmless the Attorneys against any and all expenses,
losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject insofar as such
expenses, losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any action
taken or omitted to be taken by said Attorney pursuant hereto,
except if such expenses, losses, claims, damages or liabilities
shall result from the gross negligence or wilful malfeasance of
said Attorney. It is understood that the Attorneys (acting in
that capacity alone) shall serve without compensation.
6. In acting hereunder, the Attorneys may rely on
the representations, warranties and agreements of the
undersigned made in the Custody Agreement.
<PAGE>
<PAGE>
7. This Power of Attorney shall be governed by, and
construed in accordance with, the laws of the State of New
York.
8. Any delivery to the Selling Shareholder made
pursuant to Section 1(e) shall be made by registered mail to
the Selling Shareholder at the address shown on the Company's
shareholder records, provided that the Selling Shareholder may,
at the Selling Shareholder's own expense, if any, make such
other suitable arrangements with the Attorney for the delivery
of any such certified or official bank check or checks as shall
be acceptable to the Attorney. Any delivery to the Company
made pursuant to Section 1(e) shall be made by personal
delivery to a duly authorized officer of the Company against
receipt therefor.
Date: ________________
Number of Common
Shares to be Sold Signature
to Underwriters:
Common Shares
By:___________________________
(Note: The signature must
be guaranteed by a bank or
trust company having an
office or a correspondent in
the City of New York or by a
member firm of the New York
or American Stock Exchange.)
<PAGE>
<PAGE>
EXHIBIT B
CUSTODY AGREEMENT
THIS AGREEMENT, dated as of September , 1995, among
Leucadia National Corporation, a New York corporation (the
"Company"), the undersigned shareholder of the Company (the
"Selling Shareholder") and Weil, Gotshal & Manges, as custodian
(the "Custodian").
W I T N E S S E T H :
WHEREAS, the Company has filed with the Securities
and Exchange Commission (the "Commission") a Registration
Statement on Form S-3 (the "Registration Statement") in
connection with the proposed offer and sale to the public of
its Common Shares, $1.00 par value per share (the "Common
Shares"), to be offered and sold by and on behalf of the
Selling Shareholder and the other selling shareholders named in
the Registration Statement (the "Public Offering");
WHEREAS, the Common Shares to be offered and sold by
such Selling Shareholder in the Public Offering are issuable
upon the exercise of Warrants to Purchase Common Stock (the
"Warrants");
WHEREAS, to induce CS First Boston Corporation and
Jefferies & Company, Inc., the representatives (the
"Representatives") of the several underwriters of the Public
Offering (the "Underwriters"), to enter into the Underwriting
Agreement referred to in Section 3 hereof and to assure the
Underwriters that the Common Shares to be offered by the
Selling Shareholder will be delivered to the Representatives at
the closing of the Public Offering and to provide for the
orderly processing of the Registration Statement and sale of
such Common Shares, it is necessary and in the best interests
of the Selling Shareholder, the other selling shareholders and
the Company to enter into the following agreement;
NOW, THEREFORE, in consideration of the premises and
the covenants and agreements hereinafter set forth and other
good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Appointment of Custodian. The Custodian is
hereby appointed to act, to hold and to deliver to the Company
<PAGE>
<PAGE>
for exercise the Selling Shareholder's Warrants which are
exercisable for such Selling Shareholder's Common Shares to be
offered and sold in the Public Offering and, upon such
exercise, to hold and dispose of such Common Shares, all of the
foregoing pursuant to the instructions of the Selling
Shareholder or an attorney-in-fact for the Selling Shareholder
(the "Attorney-in-Fact") appointed by the Selling Shareholder
pursuant to a Power of Attorney executed by the Selling
Shareholder and attached hereto as Appendix I, all in
accordance with the terms and conditions of this Agreement.
2. Deposit of Warrants. At the time of the
execution of this Agreement the Selling Shareholder shall
deposit with the Custodian (i) Warrants exercisable for at
least the number of Common Shares set forth opposite such
Selling Shareholder's name on Exhibit A hereto, such Warrants
in negotiable and proper deliverable form with signatures
guaranteed by a bank or trust company having an office or a
correspondent in the City of New York or by a member firm of
the New York or American Stock Exchange or accompanied by a
duly executed stock power or powers, in blank, bearing the
signature of the undersigned or the undersigned's Attorney-in-
Fact so guaranteed and (ii) with respect to such Common Shares,
a duly executed stock power or powers, in blank, bearing the
signature of the undersigned or the undersigned's Attorney-in-
Fact so guaranteed. The Warrants and the stock powers referred
to in the preceding sentence shall be delivered to the
Custodian at the address set forth in Section 9 hereof for
deposit with the Custodian. Thereafter, upon the reasonable
request of the Custodian, the Selling Shareholder agrees to
furnish to any warrant agent, the transfer agent of the Company
or the Company any other documentation which any of them may
request in connection with the exercise of such Warrants for
the Common Shares to be offered and sold by such Selling
Shareholder in the Public Offering or to assure the sale and
transfer of such Common Shares. Such Warrants which are to be
deposited with the Custodian by the Selling Shareholder in
accordance with the foregoing are hereinafter sometimes
referred to as the "Deposit Warrants"; such Common Shares which
are issuable upon exercise of such Deposit Warrants are
hereinafter sometimes referred to as the "Deposit Shares"; and
such Deposit Warrants and Deposit Shares are hereinafter
collectively sometimes referred to as the "Deposit Securities."
The Deposit Securities are subject to the interests
hereunder of the Underwriters; provided, however, that until
payment by the Underwriters of the purchase price for the
Deposit Shares to be offered and sold by the Selling
Shareholder in the Public Offering, the Selling Shareholder
shall remain the owner of the Deposit Securities; the
<PAGE>
<PAGE>
arrangements for the custody and delivery of the Deposit
Securities made by the Selling Shareholder hereunder are not
subject to termination by any act of the Selling Shareholder,
or by operation of law, whether by the death or incapacity of
such Selling Shareholder or the occurrence of any other event,
except as provided in Section 4 hereof; and if any such death,
incapacity or any other event shall occur before the delivery
of the Deposit Shares to be offered and sold by the Selling
Shareholder in the Public Offering, the Custodian is
nevertheless fully authorized and directed to deliver to the
Company for exercise such Deposit Warrants for such Deposit
Shares and, upon such exercise, to deliver certificates for
such Deposit Shares in accordance with the terms and conditions
of this Agreement and the Underwriting Agreement (as defined
below) as if such death, incapacity or other event had not
occurred, regardless of whether or not the Custodian shall have
received notice of such death, incapacity or other event.
3. Underwriting Agreement. The Selling Shareholder
acknowledges receipt of a draft of an underwriting agreement
among the Company, the Selling Shareholder, the other selling
shareholders and the Underwriters relating to the offering of
Common Shares and the purchase thereof by the several
Underwriters, a copy of which is attached hereto as
Appendix II. The definitive underwriting agreement, to be in
substantially the form of such draft (the "Underwriting
Agreement"), will set forth the terms and conditions of the
sale and purchase of said Common Shares and will provide for
the rights and responsibilities, and the representations,
warranties, covenants and indemnities of the Selling
Shareholder in connection therewith. It is understood that the
Underwriting Agreement will be executed by one or more of the
Representatives, by the Company and by either the Selling
Shareholder or by an Attorney-in-Fact on behalf of the Selling
Shareholder and that the price to be paid to the Selling
Shareholder by the Underwriters for the Common Shares being
offered will be included in the Underwriting Agreement. The
Selling Shareholder hereby approves the draft of the
Underwriting Agreement attached hereto as Appendix II, together
with any and all such changes thereto as are approved by any
Attorney-in-Fact.
4. Custodian to Act on Direction of Attorneys-in-
Fact. The Attorneys-in-Fact, and each of them, have been
authorized pursuant to the Power of Attorney referred to in
Section 1 to execute and deliver the Underwriting Agreement on
behalf of the Selling Shareholder, to exercise the Selling
Shareholders' Deposit Warrants which are exercisable for the
Deposit Shares to be offered and sold by the Selling
Shareholder in the Public Offering and to direct on the Closing
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<PAGE>
Date referred to in the Underwriting Agreement the release of
such Deposit Shares to the Underwriters pursuant to the terms
of the Underwriting Agreement. The Custodian is hereby
authorized and directed to deliver such Deposit Shares pursuant
to instructions from the Underwriters on the Closing Date
referred to in the Underwriting Agreement upon receipt of (a) a
certified or official bank check or checks payable in New York
Clearing House (next day) funds to the order of the Selling
Shareholder or, to the extent requested by such Selling
Shareholder or an Attorney-in-Fact for such Selling
Shareholder, to the order of the Company, in an aggregate
amount sufficient to pay the Selling Shareholder the aggregate
purchase price for such Deposit Shares purchased on such
Closing Date, less transfer taxes, if any, and (b) instructions
from either the Selling Shareholder or his Attorney-in-Fact so
to release such Deposit Shares. The Custodian shall have no
liability whatsoever for releasing such Deposit Shares to the
Underwriters in accordance with the provisions of the foregoing
sentence. If the Underwriting Agreement shall not be entered
into and the transactions contemplated thereby consummated
prior to the forty-fifth day after the date of this Custody
Agreement, then the Custodian is to return to the Selling
Shareholder all of the Deposit Securities then held by the
Custodian for the Selling Shareholder at the address set forth
on the signature page hereto, and shall destroy all stock
powers relating thereto delivered to it pursuant to Section 2
hereof. Upon the mailing of all of the Deposit Securities to
the Selling Shareholder in accordance with this Section 4, the
Custodian shall have no further responsibility hereunder.
5. Representations and Warranties of Selling Share-
holder. The Selling Shareholder hereby represents and warrants
to each Underwriter as follows:
(a) Each of the representations and warranties of
the Selling Shareholder set forth in Section 2 of the
Underwriting Agreement (in substantially the form of such
agreement provided to the undersigned) is true and
correct;
(b) This Agreement has been duly authorized,
executed and delivered by the Selling Shareholder and
constitutes a legal and binding obligation of the Selling
Shareholder, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether
<PAGE>
<PAGE>
enforcement is sought in a proceeding in equity or at
law); and
(c) The Selling Shareholder has full legal right,
capacity, power and authority to execute this Agreement
and the Power of Attorney, to enter into the Underwriting
Agreement, to exercise the Deposit Warrants for the
Deposit Shares to be offered and sold by such Selling
Shareholder in the Public Offering and to sell, transfer,
assign and deliver such Deposit Shares in accordance with
the Underwriting Agreement and valid and marketable title
to such Deposit Shares will be passed to the Underwriters
pursuant to the Underwriting Agreement.
The Selling Shareholder hereby further represents and
warrants that the foregoing representations and warranties will
be true and correct on the date the Underwriting Agreement is
executed and at the Closing Date referred to in the
Underwriting Agreement.
For purposes of rendering an opinion pursuant to the
Underwriting Agreement, Weil, Gotshal & Manges may rely on the
representations and warranties of the undersigned set forth
herein and in the Underwriting Agreement as if said
representations and warranties had been set forth in a separate
certificate directed to said counsel at and as of the Closing
Date; and for purposes of delivering any certificate on behalf
of the undersigned which may be required in connection with the
delivery of the Deposit Shares, pursuant to the Underwriting
Agreement, the Attorneys-in-Fact may rely on the
representations and warranties of the Selling Shareholder set
forth herein and in the Underwriting Agreement as if said
representations and warranties had been set forth in a separate
certificate directed to the Attorneys-in-Fact at the Closing
Date.
6. Return of Deposit Securities. Promptly after
the Closing Date, the Custodian shall return to the Selling
Shareholder at the address set forth on the signature page
hereto any Deposit Shares which are not sold pursuant to the
Underwriting Agreement and any Deposit Warrants which have not
been exercised for Deposit Shares sold pursuant to the
Underwriting Agreement. Upon the mailing of all of the Deposit
Securities as specified in the immediately preceding sentence
to the Selling Shareholder in accordance with this Section 6,
the Custodian shall have no further responsibility hereunder.
7. Expenses. The Company shall pay all such
expenses incident to the Public Offering as provided for in
Section 5 of the Underwriting Agreement.
<PAGE>
<PAGE>
8. Extent of Duties and Obligations of Custodian.
In all respects, the duties and obligations of the Custodian
shall be determined solely by the express provisions of this
Agreement, and the Custodian shall not be liable for any act or
failure to act on its part hereunder except for gross
negligence or willful misconduct, and shall be fully protected,
as against the Selling Shareholder and the Company, in any such
action as the Custodian may take hereunder in reliance on
advice of accountants, attorneys or other independent experts
selected by it (which may include attorneys employed by the
Custodian or outside counsel). No implied covenants or
obligations shall be read into this Agreement against the
Custodian. None of the provisions contained in this Agreement
shall require the Custodian to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties, or in the exercise of any of its rights
or powers hereunder.
The recitals contained herein shall be taken as the
statements of the Selling Shareholder and the Company, and the
Custodian assumes no responsibility whatsoever for the
correctness of such recitals. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any
person, firm or corporation, other than the parties hereto, the
Underwriters, the Attorneys-in-Fact, Weil, Gotshal & Manges, as
counsel to the Company and the Selling Shareholder, or Cahill
Gordon & Reindel, as counsel to the Underwriters, any legal or
equitable right, remedy or claim under or in respect to this
Agreement or under or in respect of any covenant, condition or
provision herein contained.
9. Effective Date of Agreement. This Agreement
shall become effective with respect to the Selling Shareholder
upon receipt of a copy of this Agreement, duly executed by the
Selling Shareholder, by the Custodian at the following address:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Stephen E. Jacobs, Esq.
10. Definitions. The words "it" and "its" shall be
construed, where appropriate, to be singular or plural, or
masculine, feminine or neuter.
11. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
New York.
<PAGE>
<PAGE>
12. Counterparts. This Agreement may be signed in
various counterparts which together shall constitute one and
the same Agreement.
13. Successors. This Agreement shall be binding
upon the undersigned and the heirs, legal representatives,
distributees, successors and assigns of the undersigned.
14. Notices. Notices to the Custodian shall not be
deemed to be given until actually received by it. Whenever the
time for giving a notice falls upon a Saturday, Sunday or
holiday, such time shall be extended to the next business day.
IN WITNESS WHEREOF, the parties have duly executed
this Agreement as of the day and year first above written.
LEUCADIA NATIONAL CORPORATION
By:_______________________________
Name:
Title:
WEIL, GOTSHAL & MANGES,
as Custodian
By:_______________________________
SELLING SHAREHOLDER
_____________________________
Name:
Address:
<PAGE>
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Number of Common
Name Shares To Be Sold
<S> <C>
Ian M. Cumming.................................. 690,000
Annette P. Cumming.............................. 50,000
Trustee, under Agreement
dated January 3, 1979 for
John Darnaby Cumming Age
21 Trust
Annette P. Cumming.............................. 50,000
Trustee, under Agreement
dated January 3, 1979 for
David Edward Cumming Age
21 Trust
John D. Cumming................................. 2,000
Jennifer Cumming Ruff........................... 4,000
Margaret Cumming................................ 4,000
Joseph S. Steinberg............................. 794,000
_________
Total............................. 1,594,000
</TABLE>
<PAGE>
EXHIBIT 5
WEIL, GOTSHAL & MANGES
A Partnership Including Professional Corporations
767 Fifth Avenue New York, NY 10153-0119
(212) 310-8000
Fax: (212) 310-8007
September 8, 1995
Leucadia National Corporation
315 Park Avenue South
New York, New York 10010
Re: Leucadia National Corporation -
Registration Statement on Form S-3
(No. 33-61867)
----------------------------------
Gentlemen:
We have acted as counsel to Leucadia National Corporation
(the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission of the Company's Registration
Statement on Form S-3, File No. 33-61867 (as amended, the
"Registration Statement") under the Securities Act of 1933, as
amended, relating to the proposed public offering by (i) Ian M.
Cumming and Joseph S. Steinberg, Chairman of the Board and President
of the Company, respectively, and certain members of Mr. Cumming's
family, of 1,594,000 common shares, par value $1.00 per share (the
"Common Shares"), of the Company, issuable upon exercise of Warrants
to Purchase Common Shares (the "Warrants") and (ii) the Company of up
to 239,100 Common Shares issuable upon exercise of the underwriters'
over-allotment option.
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the
Registration Statement, the form of Underwriting Agreement (the
"Underwriting Agreement") between the Company, the Selling
Shareholders named on Schedule A thereto and CS First Boston
Corporation and Jefferies & Company, Inc. acting as representatives of
the several underwriters named in Schedule B thereto, the form of
Warrants pursuant to which the Common Shares will be issued, and such
corporate records, agreements, documents and other instruments, and
such certificates or comparable documents of public officials and of
officers and representatives of the Company, and have
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<PAGE>
Leucadia National Corporation
September 8, 1995
Page 2
made such inquiries of such officers and representatives as we have
deemed relevant and necessary as a basis for the opinions hereinafter
set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
As to all questions of fact material to this opinion that have not
been independently established, we have relied upon certificates or
comparable documents of officers and representatives of the Company.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the Common Shares to be
issued upon exercise of the Warrants and exercise of the underwriters'
over-allotment option have been duly authorized and, when issued upon
exercise of the Warrants and the over-allotment option, respectively,
will be validly issued, fully paid and non-assessable, and no personal
liability will attach to the holders of such Common Shares under the
laws of the State of New York (the state in which the Company is
incorporated and maintains its principal place of business) except
insofar as liability may be imposed by Section 630 of the New York
Business Corporation Law.
The opinions expressed herein are limited to the laws of the
State of New York and the federal laws of the United States, and we
express no opinion as to the effect on the matters covered by this
opinion of the laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those
opinions may not be used or relied upon by any other person, nor may
this letter or any copies thereof be furnished to a third party, filed
with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent. We hereby consent to the use of
this opinion as an exhibit to the Registration Statement. We further
consent to any and all references to our firm in the Prospectus which
is a part of said Registration Statement.
Very truly yours,
WEIL, GOTSHAL & MANGES
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