Leucadia National Corporation
(a New York corporation)
$135,000,000
[ ]% Senior Subordinated Notes due 2006
UNDERWRITING AGREEMENT
October [ ], 1996
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
CS First Boston Corporation
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Leucadia National Corporation, a New York corporation (the
"Company"), hereby confirms its agreement with each of you (the "Underwriters")
with respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of $135,000,000 aggregate principal amount of
the Company's [ ]% Senior Subordinated Notes due 2006 (the "Securities") as set
forth in Schedule A hereto.
The Securities are to be issued pursuant to an indenture (the
"Indenture") between the Company and [
], as Trustee (the "Trustee").
You have advised us that you desire to purchase the Securities
and that you propose to make a public offering of the Securities as soon as you
deem advisable after the Registration Statement referred to below becomes
effective, the Pricing Agreement (as defined below) has been executed and
delivered and the Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
-2-
Prior to the purchase and public offering of the Securities by
the Underwriters, the Company and the Underwriters shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Underwriters and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The terms which follow, when used in this Agreement, shall have
the meanings indicated. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in Section 1(a)(i) below and any preliminary prospectus
included in the Registration Statement on the date that the Registration
Statement becomes effective (the "Effective Date") that omits Rule 430A
Information (as defined below). "Registration Statement" shall mean the
registration statement referred to in Section 1(a)(i) below, including exhibits,
as amended at the Representation Date (as defined below) (or, if not effective
at the Representation Date, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto becomes effective prior to the
Closing Date (as defined in Section 2 hereof), shall also mean such registration
statement as so amended. Such term shall include Rule 430A Information deemed to
be included therein at the Effective Date as provided by Rule 430A (as defined
below). The prospectus constituting a part of the Registration Statement
(including the Rule 430A Information) as from time to time amended or
supplemented, is hereinafter referred to as the "Prospectus", except that if any
revised prospectus shall be provided to the Underwriters by the Company which
differs from the prospectus on file at the Securities and Exchange Commission
(the "Commission") at the Effective Date (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424 of the Act
Regulations), the term "Prospectus" shall refer to each such revised prospectus
from and after the time it is first provided to the Underwriters for such use.
"Rule 158," "Rule 424" and "Rule 430A" refer to such rules under the Securities
Act of 1933, as amended (the "Act"; the rules and regulations under the Act, the
"Act Regulations"). "Rule 430A Information" means information with respect to
the Securities and the offering thereof permitted to be omitted from the
-3-
Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, which have been filed under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder (collectively, the "Exchange Act") as
of the Effective Date, and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, a
Preliminary Prospectus or Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission deemed to
be incorporated by reference therein (all such incorporated documents being
herein called the "Incorporated Documents").
SECTION 1. Representations and Warranties. (a) The Company
represents and warrants to the Underwriters as of the date hereof and as of the
date of execution of the Pricing Agreement (such date being referred to as the
"Representation Date") and as of the Closing Date (as defined in Section 2
below), as follows:
(i) The Company meets the requirements for use of Form S-3 under
the Act and has filed with the Commission a registration statement
(Registration No. 333-[ ]) on such Form, including a related preliminary
prospectus, for the registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments
thereto, including the related preliminary prospectus, each of which has
previously been furnished to the Underwriters. The Company will file
with the Commission either (A) prior to effectiveness of such
registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (B) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b) of the Act Regulations. The
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information in the
case of clause (B)) required by the Act and the Act Regulations to be
included in the Prospectus with respect to the Securities and the
offering thereof. As filed, such amendment and form of final prospectus,
or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, with respect to
-4-
the Securities and the offering thereof and, except to the extent the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriters prior to
the date hereof.
(ii) On the Effective Date and on the Representation Date and the
Closing Date, the Registration Statement did and will, and when the
Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Representation Date and the Closing Date, the Prospectus
(together with any supplements thereto) will comply in all material
respects with the applicable requirements of the Act and the Act
Regulations; on the Effective Date and the Closing Date, the
Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Representation Date and the
Closing Date, and on the date of any filing pursuant to Rule 424(b), the
Prospectus (together with any supplements thereto) did not and will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, that the Company makes no representations or warranties to an
Underwriter as to the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of such Underwriter with respect to such
Underwriter for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto).
(iii) In reliance in part upon representations of Xxxxxxx &
Xxxxxxx 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
the Registration Statement and the Prospectus (including the
Incorporated Documents) are independent accountants as required by the
Act.
(iv) 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
-5-
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 the Company to be so qualified
would not, singly or in the aggregate, have a Material Adverse Effect
(as defined below).
(v) 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, 1995 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.
(vi) 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 the
Registration Statement and the Prospectus, all outstanding shares of
capital stock of such Subsidiaries are owned by the Company, either
directly or through wholly-owned Subsidiaries, free and clear of any
security interests, claims, liens or encumbrances.
(vii) 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 the Prospectus,
and neither the Company nor any of its Subsidiaries has received any
notice of proceedings relating to
-6-
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 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.
(viii) 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 Act Regulations and the Exchange
Act, as applicable.
(ix) Since the respective dates as of which information is
provided in 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").
(x) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus or the Incorporated Documents,
without giving effect to any exercise of outstanding options subsequent
to the date of the Prospectus and prior to the filing of any subsequent
Incorporated Document; all of the Company's issued and outstanding
common shares, $1.00 par value per share (the "Common Shares"), have
been duly authorized and validly issued and are fully paid and
non-assessable.
(xi) 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
-7-
or instrument (including, without limitation, any Senior Indebtedness of
the Company (as defined in the Indenture)) 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.
(xii) The Indenture has been duly authorized by the Company and,
upon execution and delivery by the Company (assuming the due
authorization, execution and delivery by the Trustee), will constitute a
valid and binding agreement of the Company, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
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), including principles of commercial
reasonableness, good faith and fair dealing.
(xiii) The Securities, when executed by the Company and
authenticated by the Trustee in accordance with the terms of the
Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee), and delivered to and paid for by you in
accordance with the terms of this Agreement and the Pricing Agreement,
will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture.
(xiv) The Securities and the Indenture conform to the respective
descriptions thereof in the Registration Statement and Prospectus.
(xv) 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.
(xvi) 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 the Registration Statement or to any of the
documents incorporated by reference therein by the Act, the Act
Regulations or the Exchange Act that have not been so filed.
-8-
(xvii) 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 the Trust Indenture 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 Securities by the Underwriters
and such other approvals as have been obtained.
(xviii) Neither the issue and sale of the Securities, nor 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.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters pursuant to the
terms of this Agreement shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing. (a)The
Company agrees to sell to each Underwriter, severally and not jointly, and, on
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, each Underwriter agrees to purchase
from the Company, at the purchase price set forth in the Pricing Agreement, the
aggregate principal amount of Securities set forth in Schedule A hereto opposite
the name of such Underwriter. The Company will have no obligation to sell to the
Underwriters any of the Securities hereunder unless the Underwriters purchase
all of the Securities hereunder.
If the Company has elected not to rely upon Rule 430A, the
initial public offering price of the Securities and the purchase price of the
Securities to be paid by the
-9-
Underwriters and certain other principal terms of the Securities have each been
determined and set forth in the Pricing Agreement, dated the date hereof, and an
amendment to the Registration Statement and the Prospectus containing such
information will be filed before the Registration Statement becomes effective.
If the Company has elected to rely upon Rule 430A, the initial
public offering price of the Securities, the purchase price for the Securities
to be paid by the Underwriters and certain other principal terms of the
Securities shall be agreed upon and set forth in the Pricing Agreement. In the
event that such price and terms have not been agreed upon and the Pricing
Agreement has not been executed and delivered by all parties thereto by the
close of business on the fourth business day following the date of this
Agreement, this Agreement shall terminate forthwith, without liability of any
party to any other party, except as set forth in Section 4 hereof.
(b) Payment of the purchase price for, and delivery of, the
Securities to be purchased by the Underwriters shall be made at the offices of
Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Underwriters and the Company, at
10:00 A.M. on the third business day following the date the Registration
Statement becomes effective (or, if the Company has elected to rely upon Rule
430A, the third business day after the date of execution of the Pricing
Agreement), or such other time not later than ten business days after such date
as shall be agreed upon by the Underwriters and the Company (such time and date
of payment and delivery being herein called "Closing Date").
Payment shall be made to the Company by wire transfer of
immediately available funds against delivery to the Underwriters of the
Securities to be purchased by them. The Securities shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least two business days before the Closing Date. The Securities will
be made available for examination and packaging by the Underwriters not later
than 1:00 P.M. on the last business day prior to the Closing Date at the offices
of the Trustee in New York City.
SECTION 3. Covenants of the Company. The Company
covenants with each of the Underwriters as follows:
-10-
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the date of this Agreement,
and any amendment thereof, to become effective, as promptly as possible
after the filing thereof. The Company will not file any amendment to the
Registration Statement or amendment or supplement to the Prospectus
(including any document required to be filed under the Exchange Act that
upon filing is deemed to be incorporated by reference therein) to which
the Underwriters shall reasonably object in writing after a reasonable
opportunity to review such amendment or supplement. The Company shall
furnish to the Underwriters copies of any document that upon filing is
deemed to be incorporated by reference in the Registration Statement or
Prospectus. Subject to the foregoing sentences in this clause (a), if
the Registration Statement has become or becomes effective pursuant to
Rule 430A, or filing of the Prospectus or supplement to the Prospectus
is otherwise required under Rule 424(b), the Company will cause the
Prospectus, properly completed, or such supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to the Underwriters of such timely filing. The Company will promptly
advise the Underwriters (A) when the Registration Statement, if not
effective at the date of this Agreement, and any amendment thereto,
shall have become effective, (B) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (C) when any amendment to the Registration
Statement shall have been filed or become effective, (D) of any request
by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (E) of
the receipt by the Company of any notification of, or if the Company
otherwise has knowledge of, the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (F) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
-11-
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
any 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 shall
be necessary to amend the Registration Statement or amend or supplement
the Prospectus to comply with the Act or the Act Regulations, the
Company promptly will prepare and file with the Commission, subject to
the second sentence of Section 3(a), an amendment or supplement which
will correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its securityholders and to the Underwriters an earning
statement or statements of the Company and its Subsidiaries covering the
twelve-month period ending December 31, 1997 which will satisfy the
provisions of Section 11(a) of the Act and Rule 158.
(d) The Company will furnish to the Underwriters and counsel for
the Underwriters, without charge, three signed copies of the
Registration Statement (including exhibits thereto and all documents
incorporated by reference therein) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and all
amendments and supplements thereto as the Underwriters may reasonably
request.
(e) The Company will cooperate with the Underwriters and their
counsel in connection with endeavoring to obtain the qualification or
registration, or exemption from qualification, of the Securities for
offer and sale under the applicable securities and insurance laws of
such states and other jurisdictions of the United States as the
Underwriters may designate; 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; and will maintain such qualifications in effect for
a period of not less than one year from the Effective Date.
-12-
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and the Form T-1 as
originally filed and of each amendment thereto, (ii) the printing and/or copying
of this Agreement, the Pricing Agreement and the Indenture, (iii) the
preparation, issuance and delivery of the Securities to the Underwriters,
including capital duties, stamp duties and transfer taxes, if any, payable upon
issuance of any of the Securities, the sale of the Securities to the
Underwriters and the fees and expenses of the Trustee, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Securities under state securities and insurance laws in accordance with the
provisions of Section 3(e), including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Survey, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the Preliminary Prospectus,
and of the Prospectus and any amendments or supplements thereto, (vii) the
printing and/or copying and delivery to the Underwriters of copies of the Blue
Sky Survey, (viii) the fee of any filing for review of the offering with the
National Association of Securities Dealers, Inc., (ix) the fees and expenses
incurred in connection with the rating of the Securities by rating agencies and
(x) the fees and expenses incurred in connection with the listing of the
Securities on the New York Stock Exchange.
If this Agreement is terminated by the Underwriters in accordance
with the provisions of Section 5 or Sections 8(a)(i) or 8(a)(ii), the Company
shall reimburse the Underwriters for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Securities hereunder are subject
to the continued accuracy in all material respects of the representations and
warranties of the Company herein contained, to the accuracy of the statements of
the Company made in any certificate pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
-13-
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date hereof, or at such later time and date
as may be approved by the Underwriters and by the Company and shall
remain effective at the Closing Date. No stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings therefor initiated or threatened by the
Commission. If the Company has elected to rely upon Rule 430A, the price
of the Securities and any price-related information previously omitted
from the effective Registration Statement pursuant to Rule 430A shall
have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period, and prior to the Closing Date,
the Company shall have provided evidence satisfactory to the
Underwriters of such timely filing, or a post-effective amendment
providing such information shall have been promptly filed and declared
effective in accordance with the requirement of Rule 430A.
(b) The Company shall have furnished to the Underwriters the
opinion of Xxxx, Gotshal & Xxxxxx, counsel for the Company, dated the
Closing Date, 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 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 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 5(b), a "Material
Adverse Effect");
(ii) Each of Leucadia, Inc. and LNC Investments, Inc. and
any other corporations of which the Company owns more than 50% of
the outstanding capital stock, directly or indirectly, and which
contributed 10% or
-14-
more of the Company's consolidated revenues for the year ended
December 31, 1995 or which represented 10% or more of the
Company's consolidated total assets at December 31, 1995, which
information may be based upon a certificate of an officer of the
Company (collectively, solely for purposes of this Section 5(b),
the "Subsidiaries") (other than 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 the
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 the Prospectus, which is not adequately disclosed in
the Prospectus, or any franchise, contract or other document that
is material to the Company and its Subsidiaries,
-15-
considered as a whole, and required to be described in the
Registration Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(v) (a) The Registration Statement has become effective
under the Act; (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 Rule 424(b); and
(c) to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or
threatened;
(vi) The Company meets the requirements for the use of
Form S-3 under the Act;
(vii) (a) Each of the 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) Each of this Agreement and the Pricing Agreement
has been duly authorized, executed and delivered by the Company;
(ix) No consent, approval, authorization or order of any
New York, Delaware corporate or Federal governmental agency or
body or, to our knowledge, any court, is required for the
consummation of the transactions contemplated hereby, except such
as have been obtained under the Act and the Trust Indenture Act
and such as may be required under the blue sky or
-16-
insurance laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters
(as to which such counsel need express no opinion);
(x) Neither the issue and sale of the Securities, nor 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 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 Securities have been duly authorized by the
Company for issuance; the Securities, when executed by the
Company and authenticated by the Trustee in accordance with the
Indenture (assuming the due authorization, execution and delivery
of the Indenture by the Trustee) and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement
and the Pricing Agreement, will constitute valid and legally
binding obligations of the Company entitled to the benefits of
the Indenture, 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);
(xii) The Company's outstanding Common Shares 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 the Common Shares;
-17-
(xiii) The Indenture has been duly and validly authorized
by the Company and has been duly qualified under the Trust
Indenture Act and, when duly executed and delivered by the
Company (assuming the due authorization, execution and delivery
by the Trustee), will constitute 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);
(xiv) The Securities, when issued, and the Indenture
conform in all material respects to the description thereof
contained in the Prospectus;
(xv) 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.
In addition, such counsel shall also state that such counsel have
participated in conferences with representatives of the Underwriters, officers
and other representatives of the Company and its subsidiaries and
representatives of the independent certified public accountants of the Company,
at which conferences 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 clause (xiv) of this Section 5(b)), 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 or at the Representation Date 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 the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the
-18-
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first provided to the
Underwriters for such use) 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 (i) the Form T-1 and (ii) the financial statements (including the notes
thereto), supporting schedules or any other financial and statistical data set
forth or referred to 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 or the federal law of the United States, to the extent they deem proper and
specified 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 responsible officers of the Company and certificates of public
officials. References to the Prospectus in this Section 5(b) include any
supplements thereto at or prior to the Closing Date.
(c) 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
-19-
Insurance Subsidiary (solely for purposes of this Section 5(c), 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 has been duly authorized and validly issued and are fully
paid and non-assessable, and, except as otherwise set forth in the
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 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,
-20-
orders, certificates and permits would not, singly or in the aggregate,
have a Material Adverse Effect.
(d) The Company shall have furnished to the Underwriters the
opinion of Xxxxxxxx, Xxxxxx, Xxxxxx & Xxxxxxxx, 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
(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 the 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.
(e) The favorable opinion, dated as of the Closing Date, of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters, with respect to the
matters set forth in clauses (v) (clauses (a) and (c) only), (vii) (clause (a)
only), (viii), (xi), (xiii) and (xiv) of Section 5(b).
In addition, such counsel shall also state that such counsel have
participated in conferences with representatives of the Underwriters, officers
and other representatives of the Company and its subsidiaries, counsel for the
Company and representatives of the independent public accountants for the
Company, at which the contents of the Registration Statement 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, on the basis of the foregoing (relying as to
-21-
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 (unless
the term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Company for use in connection with the offering of the
Securities which differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first provided to the
Underwriters for such use) at the Representation Date, 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 (i) the Form T-1 and (ii) 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 the Registration Statement or the Prospectus.
(f) The following conditions contained in clauses (i), (ii) and
(iii) of this Section 5(f) shall have been satisfied on and as of the Closing
Date and the Company shall have furnished to the Underwriters a certificate of
the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplement to the Prospectus,
the Incorporated Documents and this Agreement and that, to the best of their
knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions under this Agreement on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no
-22-
proceedings for that purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto), there
has been no Material Adverse Change.
(g) At the time of execution of this Agreement and at the Closing
Date, Coopers & Xxxxxxx shall have furnished to the Underwriters a letter or
letters, dated respectively as of the Representation Date and as of the Closing
Date, in form and substance reasonably satisfactory to the Underwriters,
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial and statistical information pertaining to the
Company and its subsidiaries contained in the Registration Statement, the
Prospectus and the Incorporated Documents and any document or instrument deemed
to be incorporated by reference in the Registration Statement and Prospectus.
(h) At the Closing Date, counsel for the Underwriters shall have
been furnished with such information, certificates and documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as contemplated herein and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained, or otherwise in
connection with the offering contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters.
If any condition specified in this Section 5 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company, and
such termination shall be without liability of any party to any other party
except as provided in Section 4.
SECTION 6. Indemnification and Contribution. (a) The Company
agrees to indemnify, defend and hold harmless each Underwriter and its
respective officers, employees and directors and any person who controls any
Underwriter within
-23-
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
officer, employee, director or controlling person may incur under the Act, the
Exchange Act or otherwise, as such expenses are incurred, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof) or in a Prospectus (the term Prospectus for the purpose of
this Section 6 being deemed to include any Preliminary Prospectus, the
Prospectus and the Prospectus as amended or supplemented), or arises out of or
is based upon any omission or alleged omission to state a material fact required
to be stated in either such Registration Statement or the Prospectus or
necessary to make the statements made therein not misleading, except insofar as
any such loss, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact made in
conformity with information furnished in writing by such Underwriter to the
Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading; provided, that
the indemnity agreement contained in this Section 6(a) with respect to any
untrue statement or omission in any Preliminary Prospectus or amended
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or to
the benefit of any person controlling such Underwriter) from whom the person
asserting any such loss, expense, liability or claim purchased the Securities
which is the subject thereof, if the Prospectus corrected any such alleged
untrue statement or omission and if such Underwriter failed to send or give a
copy of the Prospectus, excluding any documents incorporated by reference, to
such person at or prior to the written confirmation of the sale of Securities to
such person.
If any action is brought against an Underwriter or its respective
officers, employees, directors or person who controls any Underwriter (as
described above) in respect of which indemnity may be sought against the Company
pursuant to the foregoing paragraph, such Underwriter shall promptly notify
-24-
the Company in writing of the institution of such action and the Company shall
assume the defense of such action, including the employment of counsel and
payment of reasonable expenses. Such Underwriter or such officer, employee,
director or person who controls any Underwriter (as described above) shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
persons unless the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such action or the
Company shall not have employed counsel to have charge of the defense of such
action or such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or
additional to those available to the Company (in which case the Company shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Company; provided, that the Company shall only be
responsible for the fees and expenses of one counsel for each Underwriter
hereunder. Anything in this paragraph to the contrary notwithstanding, the
Company shall not be liable for any settlement of any such claim or action
effected without its written consent, which consent shall not be unreasonably
withheld.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, each of its directors, officers and employees and any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any loss, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act or otherwise,
insofar as such loss, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of such
Underwriter to the Company expressly for use with reference to such Underwriter
in the Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated either
in such Registration Statement or Prospectus or necessary to make such
information not misleading.
-25-
If any action is brought against the Company or any such person
in respect of which indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such action and such Underwriter
shall assume the defense of such action, including the employment of counsel and
payment of reasonable expenses. The Company or such person shall have the right
to employ its or his own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of the Company or such person unless the
employment of such counsel shall have been authorized in writing by such
Underwriter in connection with the defense of such action or such Underwriter
shall not have employed counsel to have charge of the defense of such action or
such indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional to
those available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred. Anything in this paragraph to the
contrary notwithstanding, no Underwriter shall be liable for any settlement of
any such claim or action effected without the written consent of such
Underwriter, which consent shall not be unreasonably withheld.
(c) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection (a) or (b) of this Section
6 in respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, expenses, liabilities or claims
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other hand
from the offering of the 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 referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the
-26-
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
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
expenses, liabilities and claims referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action.
(d) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 6(c) above. Notwithstanding
the provisions of this Section 6, 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 such Underwriter 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 statement 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 to contribute pursuant to this
Section 6 are several in proportion to their respective underwriting commitments
and not joint.
(e) The indemnity and contribution agreements contained in this
Section 6 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect irrespective
of any investigation made by or on behalf of any Underwriter, or any of its
officers, employees, directors or person who controls any Underwriter within the
meaning of Section 15 of the Act or Section
-27-
20 of the Exchange Act, or by or on behalf of the Company, its directors,
officers, employees or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Securities.
The Company and each Underwriter agree promptly to notify the others of the
commencement of any litigation or proceeding against it and, in the case of the
Company, against any of the Company's officers and directors in connection with
the issuance and sale of the Securities, or in connection with the Registration
Statement or Prospectus.
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties, and agreements contained in this
Agreement and the Pricing Agreement, or contained in certificates of officers of
the Company submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or any of its respective officers, employees, directors or person
who controls any Underwriter, or by or on behalf of the Company, and shall
survive delivery of the Securities to and payment for the Securities by the
Underwriters.
SECTION 8. Termination of Agreement. (a) The Underwriters may
terminate this Agreement, by notice to the Company (i) if there shall occur any
default or breach by the Company hereunder or the failure to satisfy any of the
conditions contained in Section 5 hereof, (ii) if there has been, since the date
of this Agreement or since the respective dates as of which information is
provided in the Registration Statement and prior to the Closing Date, any
Material Adverse Change or any downgrading of any of the Company's securities or
the placement of any such securities on a so-called "credit watch" or similar
list by any major credit rating agency, or (iii) if, since the date of this
Agreement and prior to the Closing Date, (A) there has occurred any material
adverse change in the financial markets of the United States or any outbreak of
hostilities or other calamity or crisis, the effect of which on the financial
securities markets of the United States is such as to make it, in the judgment
of the Underwriters, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (B) trading in any of the
securities of the Company has been suspended by the Commission, or trading
generally on the New York Stock Exchange has been suspended (other than by
limitation on hours or number of days of
-28-
trading), or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by the New York Stock
Exchange or by order of the Commission or any other governmental authority or
(C) a banking moratorium has been declared by either Federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4.
SECTION 9. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters, c/x Xxxxxxxxx & Company,
Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of
Xxxxx Xxxxx; notices to the Company shall be directed to it at 000 Xxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the Secretary of the Company, with
a copy to Weil, Gotshal & Xxxxxx at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
xxxxxxxxx of Xxxxxxx X. Xxxxxx, Esq.
Section 10. Parties. This Agreement and the Pricing Agreement
shall each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors and legal representatives. Nothing
expressed or mentioned in this Agreement or the Pricing Agreement is intended or
shall be construed to provide any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and legal
representatives and the controlling persons and officers, employees and
directors referred to in Sections 6 and 7 and their respective heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters and the Company and their respective successors and
legal representatives, and said controlling persons and officers and directors
and their respective heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
-29-
SECTION 11. Governing Law and Time. This Agreement and the
Pricing Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
-30-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
LEUCADIA NATIONAL CORPORATION
By:
_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXXXX & COMPANY, INC.
By: __________________________
Name:
Title:
CS FIRST BOSTON CORPORATION
By: __________________________
Name:
Title:
SCHEDULE A
Aggregate Principal
Amount of Securities
Name of Underwriter to be Purchased
------------------- --------------------
Xxxxxxxxx & Company, Inc. .....................................$[ ]
CS First Boston Corporation.....................................[ ]
------------
Total $135,000,000
EXHIBIT A
Leucadia National Corporation
(a New York corporation)
$135,000,000
[ ]% Senior Subordinated Notes due 2006
PRICING AGREEMENT
October [ ], 1996
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
CS First Boston Corporation
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement dated October
[ ], 1996 (the "Underwriting Agreement") between Leucadia National
Corporation, a New York corporation (the "Company"), and you, relating to the
purchase by you from the Company, subject to the terms and conditions set forth
herein and therein, of $135,000,000 aggregate principal amount of the Company's
[ ]% Senior Subordinated Notes due 2006 (the "Securities"). This Agreement is
the Pricing Agreement referred to in the Underwriting Agreement and capitalized
terms used herein without definition shall have the meanings assigned to them in
the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with you as follows:
1. The initial public offering price of the Securities,
determined as provided in said Section 2, shall be [ ]% of the principal amount
thereof, plus accrued interest, if any, from October [ ], 1996.
2. The purchase price of the Securities to be paid by the
Underwriters shall be [ ]% of the principal amount
-2-
thereof, plus accrued interest, if any, from October [ ], 1996.
3. The interest rate to be borne by the Securities shall
be [ ]% per annum.
4. The Securities will mature on October [ ], 2006.
The Company represents and warrants to the Underwriters that the
representations and warranties of the Company set forth in Section 1 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
-3-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts and together with the Underwriting
Agreement, will be a binding agreement between you and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
LEUCADIA NATIONAL CORPORATION
By:
____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXXXX & COMPANY, INC.
By: __________________________
Name:
Title:
CS FIRST BOSTON CORPORATION
By: __________________________
Name:
Title:
