Exhibit 10.4
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
AMENDED AND RESTATED AGREEMENT made as of December 16, 1997 by
and between XXX X. XXXXXXX ("Cumming"), residing at 0000 Xxxxxxxx Xxx, Xxxx Xxxx
Xxxx, Xxxx, 00000, XXXXXX X. XXXXXXXXX ("Xxxxxxxxx"), residing at 00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (Cumming and Xxxxxxxxx sometimes are
collectively referred to as the "Stockholders" and individually as a
"Stockholder") and LEUCADIA NATIONAL CORPORATION("Leucadia"), a New York
corporation having its principal place of business at 000 Xxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, each Stockholder is the direct owner of the number of
shares of the common stock, par value $1.00 per share, of Leucadia (the "Common
Shares") set forth on Exhibit A hereto; and
WHEREAS, the parties to this Agreement wish to provide for the
purchase by Leucadia of certain of the Common Shares beneficially owned by a
deceased Stockholder; and
WHEREAS, the parties to this Agreement wish to provide the
funds necessary for the purchase by Leucadia of the Common Shares of a
Stockholder under the terms of this Agreement through insurance on the life of
each Stockholder;
1. By-Sell Obligation. Upon the death of either Stockholder,
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Leucadia agrees to purchase from the estate of the deceased Stockholder (the
"Estate"), such number of Common Shares owned by the deceased Stockholder as of
the deceased Stockholder's date of death (the "Deceased Stockholder's Common
Shares") having an aggregate purchase price determined in accordance with
paragraph 2 hereof equal to the Insurance Proceeds (as hereinafter defined);
provided, however, that Leucadia shall not be obligated to purchase from the
Estate and the Estate shall not be obligated to sell to Leucadia more than 55%
of the Deceased Stockholder's Common Shares (the "Shares") and further provided,
however, that Leucadia shall not be obligated to purchase from the Estate and
the Estate shall not be obligated to sell to Leucadia any portion of the
Deceased Stockholder's Common Shares to the extent a purchase thereof would
result in the imposition of limitations under Section 382 of the Internal
Revenue Code of 1986 on the use, for federal income tax purposes, of the net
operating losses and other credit or loss carryovers of Leucadia or any
subsidiary thereof. Each Stockholder agrees that the Shares
to be acquired pursuant to this Agreement shall be sold and transferred by the
legal representative of his Estate (the "Legal Representative") to Leucadia in
accordance with the terms of this Agreement.
2. Purchase Price for the Common Shares.
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(a) The purchase price for each Share shall
be equal to the greater of (i) "Net Book Value Per Share" (as hereinafter
defined) as at the end of the fiscal quarter immediately preceding the fiscal
quarter in which the date of death of the deceased Stockholder occurs; or (ii)
the average of the closing price for the Common Shares on the New York Stock
Exchange for the forty (40) trading days preceding the date of death of the
deceased Stockholder.
(b) For the purposes of this Agreement, the
"Net Book Value Per Share" shall be the difference between the book value of
Leucadia's assets and the book value of its liabilities, determined in
accordance with generally accepted accounting principles applicable to
Leucadia's then most recent audited financial statements and the regular methods
and practices used by Leucadia in calculating book value applied on a basis
consistent with those used by Leucadia at September 30, 1987, divided by the
number of Common Shares then outstanding. Net Book Value Per Share shall be
calculated on a fully diluted basis.
3. Payment of the Purchase Price. The purchase price for
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the Shares shall be paid in cash to the Estate of the deceased Stockholder
within the later of (i) five days of receipt of the Insurance Proceeds or (ii)
thirty days after the death of the deceased Stockholder, unless the Legal
Representative has not been qualified, in which event the purchase price shall
be paid on the fifth business day after qualification of the Legal
Representative.
4. Insurance.
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(a) Leucadia acknowledges that it has
purchased from each of the insurance carriers set forth on Exhibit B hereto a
policy of term life insurance on the life of each of Cumming and Xxxxxxxxx in
the aggregate amount per individual of $50,000,000 (the "Insurance"). Each
Stockholder agrees to do everything necessary to cause such policy to be issued.
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(b) Leucadia agrees (i) to use its best
efforts to maintain the Insurance during the term of this Agreement, (ii) to pay
the premiums on the Insurance as such premiums fall due, (iii) to give proof of
such payment to the insured Stockholder within twenty days after the due date of
each premium and (iv) upon the death of a Stockholder, to use the proceeds of
the Insurance (the "Insurance Proceeds") to fund its purchase of Shares in
accordance with the terms of this Agreement. Upon the failure of Leucadia to pay
a premium when it becomes due, the insured Stockholder shall have the right to
pay the premium and to be reimbursed therefor by Leucadia.
(c) In the event that the Insurance with
respect to a Stockholder is not in effect for any reason other than as a result
of a breach by Leucadia of the terms of this Agreement, this Agreement shall
terminate with respect to such Stockholder.
5. Transfer of Common Shares. Each Stockholder agrees
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that upon receipt of cash in full payment for all or a portion of his Shares in
accordance with the terms hereof the Legal Representative of his Estate will
execute and deliver to Leucadia all the documents which are required to transfer
such Shares to Leucadia, including within limitation, the release or waiver of
any tax liens, along with the certificates for such Shares.
6. Restriction on Alienation of Shares. Each
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Shareholder agrees that, until the Shares are sold pursuant to the terms hereof,
his Estate shall not sell, assign, encumber or otherwise dispose of any direct
or indirect interest in the Common Shares except pursuant to this Agreement.
Nothing contained in this Agreement, however, shall restrict in any manner a
Stockholder's right or ability to sell, assign, encumber or otherwise dispose of
any direct or indirect interest in the Common Shares during his lifetime.
7. Specific Performance. The parties recognize that
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irreparable harm will result in the event that this Agreement shall not be
specifically enforced. If any dispute arises concerning the disposition
hereunder of any of the Common Shares, the parties hereto agree that an
injunction may be issued restraining such disposition pending determination of
such controversy and that no bond or other security shall be required in
connection therewith. If any dispute arises concerning the right or obligation
of
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any party hereto to purchase or sell any of the Common Shares, such right or
obligation shall be enforceable by a decree of specific performance. Such
remedies shall not, however, be exclusive and shall be in addition to the other
remedy or remedies which the parties may have.
8. Termination. This Agreement shall terminate upon the
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occurrence of any of the following events:
(a) The mutual consent in writing of the
parties to this Agreement; or
(b) The expiration of thirty (30) days after
a petition in bankruptcy shall have been filed by or against Leucadia and such
petition shall not have been discharged during such thirty (30) day period; or
upon an assignment by Leucadia for the benefit of creditors; or upon the
expiration of thirty (30) days after the commencement of any proceeding under
any act of Congress or governmental authority for the relief of debtors seeking
the relief or readjustment of indebtedness either through reorganization,
composition, extension, or otherwise, and such proceedings involving Leucadia as
debtor shall not have been vacated within such thirty (30) day period; or upon
the voluntary or involuntary dissolution of Leucadia;
(c) The occurrence of the event described in
Section 4(c) hereof; or
(d) June 30, 2003.
9. Entire Agreement. This Agreement constitutes the
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complete understanding and agreement among the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or modified, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of any
such amendment, supplement, modification or waiver is sought.
10. Successors and Assigns. All of the terms and
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provisions of this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, successors, personal
representatives, and assigns.
11. Governing Law. This Agreement has been made in, and
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shall be governed by, construed and enforced in accordance with, the laws of the
State of New York.
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12. Notices. All notices, offers, acceptances and other
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communications to be made, served or given under or pursuant to the terms hereof
shall be in writing and shall be personally delivered or sent by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
parties hereto at their respective addresses as set forth at the beginning of
this Agreement, or to such other address as a party hereto shall have given
notice of pursuant hereto.
13. Severability. If at any time subsequent to the date
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hereof, any provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such provision shall be of no
force and effect, but the illegality or unenforceability of such provision shall
have no effect upon and shall not impair the enforceability of any other
provision of this Agreement.
14. Counterparts. This Agreement may be executed in one
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or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
15. Paragraph Headings. The paragraph headings
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contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
/s/ Xxx X. Xxxxxxx
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XXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
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Xxxxxx X. Orlando
Vice President and
Chief Financial Officer
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