Exhibit 2
EXECUTION COPY
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of December 29, 2004
(this "Agreement"), by and among Xxxxxx X. Xxxxxxxxx (the "Seller") and
Xxxxxxxxx & Company, Inc. (the "Purchaser").
W I T N E S S E T H :
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WHEREAS, the Seller is the owner of seven hundred fifty
thousand (750,000) common shares (the "Shares"), $1.00 par value, of Leucadia
National Corporation, a New York corporation (the "Issuer"); and
WHEREAS, the Shares are "Exchange Shares" as such term is
defined in the Agreement and Plan of Reorganization dated February 23, 1989 (the
"Plan") between the Issuer and TLC Associates, Inc. a New York general
partnership that was dissolved effective May 31, 1990, of which the Seller was a
general partner; and
WHEREAS, as Exchange Shares, the Shares are subject to
registration rights as set forth in Exhibit 1 to the Plan (the "Registration
Rights"); and
WHEREAS, the Issuer has declared a three-for-two stock
split to be effected in the form of a 50% stock dividend (the "Stock Dividend")
and a cash dividend of $0.375 per common share (on a pre-split basis) (the "Cash
Dividend"), in each case payable on December 31, 2004 to shareholders of record
on December 23, 2004; and
WHEREAS, the Seller has agreed to sell to the Purchaser,
and the Purchaser has agreed to purchase from the Seller, all of the Seller's
right, title and interest in and pertaining to the Shares for an aggregate
purchase price of $49,500,000 (the "Purchase Price"), all upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, it is agreed as follows:
1. PURCHASE AND SALE
1.1 Purchase and Sale . Subject to the terms and conditions
set forth in this Agreement, the Purchaser agrees to purchase from the Seller,
and the Seller agrees to sell, transfer and assign to the Purchaser, on the
Closing Date (as defined below), all of the Seller's right, interest and title
in the Shares, the Stock Dividend, and the Registration Rights applicable to the
Shares and the shares to be issued pursuant to the Stock Dividend, for the
Purchase Price. Seller and Purchaser agree that Seller shall retain the Cash
Dividend payable on the Shares and Purchaser shall receive the shares of the
Issuer payable upon the Stock Dividend (the "Dividend Shares"). On the Closing
Date, the Purchaser shall pay the Purchase Price to the Seller by a wire
transfer of immediately available funds into an account designated by such
Seller.
1.2 The Closing.
(a) The closing of the purchase and sale of the Shares and
the other transactions contemplated hereby (the "Closing") shall take place on
January 7, 2005, or such date and time as shall be mutually agreed to by the
parties hereto, but in no event later than January 21, 2005, subject to the
satisfaction or waiver of the conditions set forth in Section 4 hereof (the
"Closing Date").
(b) At the Closing:
(i) the Seller shall deliver, or cause to be delivered, to
the Purchaser (A) one or more stock certificates representing the
Shares and the Dividend Shares, duly registered in the name of the
Purchaser, (B) the opinion as set forth in Section 4.1(b), (C) such
documents or agreements, in such form reasonably satisfactory to
Purchaser, evidencing the Issuer's obligation to register under the
Securities Act of 1933, as amended (the "Securities Act") the resale
by the Purchaser of the Shares and the Dividend Shares and (D) all
such other documents and instruments, if any, that are mutually
determined by the Seller and the Purchaser to be necessary to
effectuate the transactions contemplated by this Agreement; and
(ii) the Purchaser shall deliver, or cause to be
delivered, to the Seller (A) a wire transfer of immediately available
funds into an account designated by the Seller in the amount of the
Purchase Price and (B) all such other documents and instruments, if
any, that are mutually determined by such Seller and the Purchaser to
be necessary to effectuate the transactions contemplated by this
Agreement.
2. PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser makes the following representations and
warranties to the Seller, each and all of which shall survive the execution and
delivery of this Agreement and the Closing hereunder:
2.1 Authority; Binding Effect. The Purchaser has the
requisite corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement has been duly and
validly executed and delivered by the Purchaser and (assuming the due execution
and delivery thereof by the Seller) constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
2.2 No Conflicts. The execution and delivery by the
Purchaser of this Agreement and the performance by the Purchaser of its
obligations hereunder will not conflict with, constitute a default under or
violate (1) any of the terms, conditions or provisions of the certificate of
incorporation or by-laws of the Purchaser, (2) any of the terms, conditions or
provisions of any document, agreement or other instrument to which the Purchaser
is a party or by which it is bound, (3) any law or regulation applicable to the
Purchaser, including but not limited to, the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or (4) any judgment,
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writ, injunction, decree, order or ruling of any court or governmental authority
binding on the Purchaser.
2.3 No Consents. No consent, approval, waiver, license or
authorization or other action by or filing with any governmental authority is
required in connection with the execution and delivery by the Purchaser of this
Agreement, the consummation by the Purchaser of the transactions contemplated
hereby or the performance by the Purchaser of its obligations hereunder.
2.4 Investment Intention; Accredited Investor. The
Purchaser is an "accredited investor" (as that term is defined in Rule 501 of
Regulation D under the Securities Act) and by reason of its business and
financial experience, it has such knowledge, sophistication and experience in
business and financial matters as to be capable of evaluating the merits and
risks of the prospective investment, is able to bear the economic risk of such
investment and is able to afford a complete loss of such investment. The
Purchaser is purchasing the Shares for its own account, for investment purposes
and not with a view to the distribution thereof other than pursuant to an
offering registered pursuant to the Securities Act or pursuant to an exemption
therefrom.
2.5 No Reliance or Solicitation. Except as are set forth in
this Agreement, the Purchaser has not received any representations or warranties
from the Seller or his representatives or agents concerning the Issuer, the
Shares or the transaction contemplated hereby. The Purchaser is not purchasing
the Shares as a result of (1) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or broadcast
over television or radio or (2) any seminar or meeting whose attendees,
including the Purchaser, had been invited as a result of any of the foregoing.
2.6 No Securities Act Registration. The Purchaser
understands that the Seller may be deemed to be an "affiliate" of the Issuer (as
such term is defined in Rule 144 under the Securities Act). The Purchaser
understands that the Shares to be acquired by it have not been registered under
the Securities Act and may not be sold or otherwise transferred without
registration under the Securities Act or pursuant to an exemption from such
registration requirements.
3. SELLER'S REPRESENTATIONS AND WARRANTIES
The Seller makes the following representations and
warranties to the Purchaser, each and all of which shall survive the execution
and delivery of this Agreement and the Closing hereunder:
3.1 Authority; Binding Effect. The Seller has the legal
capacity to execute and deliver this Agreement and to perform his obligations
hereunder. This Agreement has been duly and validly executed and delivered by
the Seller and (assuming the due execution and delivery thereof by the
Purchaser) constitutes the legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms.
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3.2 No Conflicts. The execution and delivery by the Seller
of this Agreement and the performance by the Seller of his obligations hereunder
will not conflict with, constitute a default under or violate (1) any of the
terms, conditions or provisions of any document, agreement or other instrument
to which the Seller is a party or by which he is bound, (2) any law or
regulation applicable to the Seller, including but not limited to, the
Securities Act and the Exchange Act, or (3) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding on the
Seller.
3.3 No Consents. No consent, approval, waiver, license or
authorization or other action by or filing with any governmental authority is
required in connection with the execution and delivery by the Seller of this
Agreement, the consummation by the Seller of the transactions contemplated
hereby or the performance by the Seller of his obligations hereunder, other than
filings by the Seller under Section 13 and Section 16 of the Securities Exchange
Act of 1934, as amended. No consent, approval, waiver, authorization or other
action by the Issuer is required in connection with the execution and delivery
by the Seller of this Agreement, the consummation by the Seller of the
transactions contemplated hereby or the performance by the Seller of his
obligations hereunder, other than such which have been obtained by the Seller or
will be obtained by the Seller on or prior to the Closing Date.
3.4 Ownership and Transfer. The Seller is the record and
beneficial owner of the Shares, free and clear of any and all liens, charges,
security interests, options, claims, equitable interests, pledges, proxies,
voting trusts or agreements, encumbrances, restrictions or adverse interests of
any kind and of any nature whatsoever (collectively, "Liens"), except for such
restrictions on transfer imposed by applicable federal or state securities laws
or the certificate of incorporation of the Issuer. Upon transfer, assignment and
delivery of the Shares and the Dividend Shares and payment therefor in
accordance with the terms of this Agreement, the Purchaser will acquire good and
marketable title to such shares, free and clear of any and all Liens, except for
such restrictions on transfer imposed by applicable federal or state securities
laws or the certificate of incorporation of the Issuer.
4. CONDITIONS PRECEDENT
4.1 The obligations of the Purchaser and the Seller under
Section 1 hereof are subject to the following conditions:
(a) All of the representations and warranties of the
Purchaser and the Seller contained in this Agreement shall be true and correct
on and as of the date hereof and on the Closing Date.
(b) On the Closing Date the Purchaser shall have received
the favorable opinion of counsel for the Seller, dated as of such Closing Date,
with respect to such matters as may be reasonably requested by the Purchaser.
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(c) On the Closing Date the Purchaser shall have received
such documents or agreements, in such form reasonably satisfactory to Purchaser,
evidencing the Issuer's obligation to register under the Securities Act the
resale by the Purchaser of the Shares and the Dividend Shares.
(d) The Seller shall have received the Purchase Price and
the Purchaser shall have received certificates for the Shares and the Dividend
Shares, duly registered in the name of the Purchaser.
4.2 The obligations of the Purchaser under Section 1 hereof
are subject to the further condition that the average closing price of the
common shares of Leucadia for the four trading days up to and including January
3, 2005 shall be not less than $60.00 per share (on a split-adjusted basis).
5. MISCELLANEOUS
5.1 Further Assurances. The Seller and the Purchaser agree
to execute and deliver such other documents or agreements and to take such other
action as may be necessary or desirable for the implementation of this Agreement
and the consummation of the transactions contemplated hereby.
5.2 Complete Agreement; Amendments; Waivers. This Agreement
constitutes the complete agreement between the parties with respect to the
subject matter hereof, supercedes any previous agreement or understanding
between them relating hereto and may not be modified, altered or amended except
as provided herein. This Agreement can be amended, supplemented or changed, 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. No action taken
pursuant to this Agreement shall be deemed to constitute a waiver by the party
taking such action or compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
5.3 Expenses. Each party hereto shall bear its own expenses
incurred in connection with the negotiation and execution of this Agreement and
each other document and instrument contemplated by this Agreement and the
consummation of the transactions contemplated hereby and thereby.
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5.4 Waiver Of Jury Trial. The parties hereto waive all
right to trial by jury in any action or proceeding to enforce or defend any
rights under the transaction documents.
5.5 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions be consummated as originally contemplated to the
fullest extent possible.
5.6 Binding Effect; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective heirs,
successors and permitted assigns. Nothing in this Agreement shall create or be
deemed to create any third party beneficiary rights in any person or entity not
a party to this Agreement. No assignment of this Agreement or of any rights or
obligations hereunder may be made by the Seller or the Purchaser (by operation
of law or otherwise) without the prior written consent of the other party hereto
and any attempted assignment without the required consent shall be void.
Notwithstanding the foregoing, Seller shall have the right to assign all or a
portion of this Agreement to one of more trusts for the benefit of his children
and to charitable trusts or foundations established or designated by Seller.
5.7 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
5.8 Submission to Jurisdiction; Consent to Service of
Process. The Purchaser and the Seller each agrees to submit to personal
jurisdiction and to waive any objection as to venue in the federal or New York
State courts located in the County of New York, State of New York. Service of
process on the Purchaser or the Seller in any action arising out of or relating
to any of this Agreement shall be effective if mailed to such party in
accordance with the provisions of Section 5.9 hereof. Nothing herein shall
preclude the Purchaser or the Seller from bringing suit or taking other legal
action in any other jurisdiction.
5.9 Notices. All notices and other communications under
this Agreement shall be in writing and shall be deemed given when delivered
personally or mailed by certified mail, return receipt required, to the parties
at the following addresses (or to such other address as a party may have
specified by notice given to the other party pursuant to this provision):
If to the Seller, to:
Xxxxxx X. Xxxxxxxxx
c/o Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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If to the Purchaser, to:
Xxxxxxxxx & Company, Inc
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
5.10 Survival. All of the representations, warranties,
covenants and agreements of the parties in this Agreement shall survive the
Closing.
5.11 Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
5.12 Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, all
of which when executed and delivered shall be considered one and the same
agreement.
[signature page follows]
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IN WITNESS WHEREOF, each Seller and the Purchaser have
executed this Agreement as of the day and year first above written.
PURCHASER:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President and
Assistant General Counsel
SELLER:
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
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