STOCK PURCHASE AGREEMENT
BETWEEN
HOMEFED CORPORATION
AND
LEUCADIA NATIONAL CORPORATION
Dated as of August 14, 1998
TABLE OF CONTENTS
Page
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. PURCHASE OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . 2
2.1. Purchase of Securities. . . . . . . . . . . . . . . . . . . 2
2.2. Anti-dilution . . . . . . . . . . . . . . . . . . . . . . . 2
III. PURCHASE PRICE AND PAYMENT. . . . . . . . . . . . . . . . . . . . 2
3.1. Amount of Purchase Price. . . . . . . . . . . . . . . . . . 2
3.2. Payment of Purchase Price . . . . . . . . . . . . . . . . . 2
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . 2
4.1. Organization. . . . . . . . . . . . . . . . . . . . . . . . 3
4.2. Due Authorization . . . . . . . . . . . . . . . . . . . . . 3
4.3. Authorized and Outstanding Shares of Capital Stock. . . . . 3
4.4. Authorization and Issuance of Securities. . . . . . . . . . 3
4.5. Subsidiary Organizations. . . . . . . . . . . . . . . . . . 4
4.6. No Other Rights . . . . . . . . . . . . . . . . . . . . . . 4
4.7. No Conflicts. . . . . . . . . . . . . . . . . . . . . . . . 4
4.8. No Consents . . . . . . . . . . . . . . . . . . . . . . . . 4
4.9. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . 4
X. XXX'x REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . 5
5.1. Organization. . . . . . . . . . . . . . . . . . . . . . . . 5
5.2. Due Authorization . . . . . . . . . . . . . . . . . . . . . 5
5.3. No Conflicts. . . . . . . . . . . . . . . . . . . . . . . . 5
5.4. LUK's Investment Intention. . . . . . . . . . . . . . . . . 6
VI. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1. Board of Directors. . . . . . . . . . . . . . . . . . . . . 6
6.2. Tax Compliance. . . . . . . . . . . . . . . . . . . . . . . 6
6.3. Registration Rights . . . . . . . . . . . . . . . . . . . . 6
VII. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . 7
7.1. Conditions Precedent to Obligations of LUK. . . . . . . . . 7
7.2. Conditions Precedent to Obligations of the Company. . . . . 8
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VIII.CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1. Closing Date . . . . . . . . . . . . . . . . . . . . . . . . 8
8.2. Liquidated Damages . . . . . . . . . . . . . . . . . . . . . 9
8.3. Specific Performance . . . . . . . . . . . . . . . . . . . . 9
IX. SECURITIES LAW MATTERS. . . . . . . . . . . . . . . . . . . . . . 9
9.1. Legends . . . . . . . . . . . . . . . . . . . . . . . . . . 9
X. INDEMNIFICATION AND EXPENSES. . . . . . . . . . . . . . . . . . . 10
10.1. Indemnification by the Company . . . . . . . . . . . . . . 10
10.2. Indemnification by LUK . . . . . . . . . . . . . . . . . . 10
XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.1. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.2. Binding Effect; Benefits . . . . . . . . . . . . . . . . . 12
11.3. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11.4. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . 12
11.5. Assignability. . . . . . . . . . . . . . . . . . . . . . . 12
11.6. Applicable Law . . . . . . . . . . . . . . . . . . . . . . 13
11.7. Section and Other Headings . . . . . . . . . . . . . . . . 13
11.8. Severability . . . . . . . . . . . . . . . . . . . . . . . 13
11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 13
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of August 14, 1998, between
HomeFed Corporation, a Delaware corporation having an office at 000 Xxxx
Xxxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (the "Company"), and Leucadia
National Corporation, a New York corporation having an office at 000
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("LUK").
W I T N E S S E T H:
WHEREAS, the Company emerged from bankruptcy under the
United States Bankruptcy Code, pursuant to a plan of reorganization (the
"Plan") that became effective on July 3, 1995 (the "Effective Date");
and
WHEREAS, the Plan prohibits the Company from issuing any
additional shares of stock prior to the fourth anniversary of the
Effective Date; and
WHEREAS, currently LUK beneficially owns approximately 41%
of the issued and outstanding common stock, par value $.01 per share of
the Company (the "Common Stock"); and
WHEREAS, upon the terms and conditions hereinafter provided,
the Company has agreed to issue and sell to LUK shares of its Common
Stock, and LUK has agreed to purchase such shares upon the terms and
conditions hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
I. DEFINITIONS
References to this "Agreement" shall mean this Stock Purchase
Agreement, including all amendments, modifications and supplements and
any exhibits or schedules to any of the foregoing, and shall refer to
this Agreement as the same may be in effect at the time such reference
becomes operative.
The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole, including the
schedules and exhibits hereto, as the same may from time to time be
amended or supplemented, and not to any particular section, subsection
or clause contained in this Agreement.
II. PURCHASE OF SECURITIES
2.1. Purchase of Securities. Upon the terms and subject to the
conditions set forth in this Agreement, on the Closing Date (as defined
herein) the Company shall issue, sell and deliver to LUK, and LUK shall
purchase from the Company 37,056,112 shares of Common Stock (the
"Securities").
2.2. Anti-dilution. Subject to the provisions of Section 7.2(c)
hereof, if the Company issues additional shares to any party other than
LUK, the number of shares of Common Stock constituting the Securities
shall be increased so that the Securities purchased on the Closing Date
will give LUK an 87.5% interest in the Company on a fully diluted basis.
III. PURCHASE PRICE AND PAYMENT
3.1. Amount of Purchase Price. The aggregate purchase price for
the Securities (the "Purchase Price") shall be $6,670,100; provided,
however, that if the number of shares constituting the Securities to be
purchased under this Agreement results in LUK's percentage share
ownership in the Company being below 87.5% pursuant to Section 7.2(c),
the Purchase Price shall be reduced accordingly.
3.2. Payment of Purchase Price. (a) On the date hereof, LUK shall
advance five million dollars ($5,000,000) of the Purchase Price,
against the aggregate Purchase Price (the "Advance").
(b) Upon the terms and subject to the conditions set forth
in this Agreement, on the Closing Date, LUK shall pay to the Company the
unpaid balance of the Purchase Price and the Company shall deliver to
LUK the Securities issued in the name of LUK or such other person or
persons as LUK shall direct.
(c) Payments of the Purchase Price shall be made by wire
transfer of immediately available funds into an account designated by
the Company.
IV. THE COMPANY'S REPRESENTATIONS AND WARRANTIES
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The Company makes the following representations and warranties to
LUK, each and all of which shall survive the execution and delivery of
this Agreement and the Closing (as defined herein) hereunder:
4.1. Organization. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as currently being
and as proposed to be conducted. The Company is qualified as a foreign
corporation to transact business in California and in any other
jurisdiction where it is required to be so qualified, except where the
failure to be so qualified would not have a material adverse effect on
the condition, financial or otherwise, or the results of operations,
business or business prospects of the Company and its subsidiaries taken
as a whole (a "Material Adverse Effect").
4.2. Due Authorization. The Company has the requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed
and delivered by the Company and, assuming that this Agreement has been
duly executed and delivered by LUK, constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as rights to indemnity hereunder may
be limited by federal or state securities laws and except as enforce-
ability may be limited by bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization and similar laws relating to or affecting
creditors' rights generally and general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or at law).
4.3. Authorized and Outstanding Shares of Capital Stock. The
authorized capital stock of the Company consists of one hundred million
(100,000,000) shares of Common Stock, of which ten million (10,000,000)
shares currently are issued and outstanding as of the date hereof. No
subscription, warrant, option or other right to purchase or acquire any
shares of any class of capital stock of Company or securities
convertible into such capital stock is authorized or outstanding, and
other than this Agreement there is no commitment of Company to issue any
such shares, warrants, options or other such rights or securities.
After giving effect to the issuance of the Securities pursuant to this
Agreement, an aggregate of 47,056,112 shares of Common Stock will be
outstanding, of which the Securities together with other shares of
Common Stock beneficially owned by LUK will represent approximately
87.5% of the outstanding shares of Common Stock, unless the number of
shares constituting the Securities is reduced pursuant to Section 7.2(c)
hereof.
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4.4. Authorization and Issuance of Securities. The issuance of
the Securities has been duly authorized and, upon delivery to LUK of
certificates therefor against payment in accordance with the terms
hereof, the Securities will have been validly issued and fully paid and
non-assessable, free and clear of all pledges, liens, encumbrances and
preemptive rights.
4.5. Subsidiary Organizations. Each subsidiary of the Company
has been duly organized and is validly existing and in good standing
under the laws of the State of California, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as currently being and as proposed to be conducted and is not
required to be qualified as a foreign entity to transact business in any
jurisdiction. All of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully
paid and nonassessable and is owned directly by the Company.
4.6. No Other Rights. The issuance of the Securities is not
subject to preemptive or other similar rights.
4.7. No Conflicts. Neither the Company nor any of its
subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the effect of which
default in performance or observance would have a Material Adverse
Effect. None of the execution and delivery of this Agreement will
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to, any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the certificate of incorporation or by-laws of the
Company or any applicable law, administrative regulation or
administrative or court decree.
4.8. No Consents. No authorization, approval or consent of, or
filing with, any court or governmental authority or agency is necessary
or required in connection with the sale of the Securities hereunder or
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under the certificate of incorporation of the Company or the execution,
delivery or performance of this Agreement or the Restated Certificate of
Incorporation.
4.9. Litigation. There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign, now
pending or, to the best knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is reasonably
likely to have a Material Adverse Effect. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or, to the best knowledge of the
Company, threatened, which would materially and adversely affect the
consummation of the transactions contemplated by this Agreement.
X. XXX'x REPRESENTATIONS AND WARRANTIES
LUK makes the following representations and warranties to the
Company, each and all of which shall survive the execution and delivery
of this Agreement and the Closing hereunder:
5.1. Organization. LUK has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York with corporate power and authority to own, lease and operate
its properties and to conduct its business as currently being and as
proposed to be conducted and to enter into and perform its obligations
under this Agreement. LUK is qualified as a foreign corporation to
transact business in each jurisdiction where it is required to be so
qualified, except where the failure to be so qualified would not have a
material adverse effect on the business, financial condition or results
of operation of LUK and its subsidiaries taken as a whole.
5.2. Due Authorization. LUK has the requisite corporate power
and authority to enter into this Agreement and consummate the
transactions contemplated hereby. This Agreement and the transactions
contemplated hereby have each been duly authorized, executed and
delivered by LUK, and this Agreement constitutes a legal, valid and
binding agreement of the Company, enforceable against LUK in accordance
with its terms, except as rights to indemnity hereunder may be limited
by federal or state securities laws and except as enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization and similar laws relating to or affecting creditors'
rights generally and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
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5.3. No Conflicts. LUK is not in violation of its certificate of
incorporation or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which LUK is a party or by which it may be
bound, or to which any of the property or assets of LUK or any of its
subsidiaries is subject, the effect of which default in performance or
observance would have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business or
business prospects of LUK and its subsidiaries considered as one
enterprise. The execution and delivery of this Agreement will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the LUK or any of its subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which LUK 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 LUK or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of LUK or any applicable law,
administrative regulation or administrative or court decree.
5.4. LUK's Investment Intention. LUK represents and warrants
that it is purchasing the Securities for its own account, for investment
purposes and not with a view to the distribution thereof, except in
compliance with the provisions of the Securities Act of 1933, as amended
(the "Act"). LUK agrees that it will not, directly or indirectly,
offer, transfer, sell, assign, pledge, hypothecate or otherwise dispose
of any of the Securities (or solicit any offers to buy, purchase, or
otherwise acquire or take a pledge of any of the Securities), except in
compliance with the Act and the rules and regulations thereunder.
5.5. Access to Data. LUK has had an opportunity to discuss the
Company's business, management, and financial affairs with its
management and to review the Company's records and facilities, and LUK
is relying for purposes of this Agreement upon its own due diligence
review of the Borrower, not on any representation or warranty of the
Borrower other than as expressly set forth in this Agreement.
VI. COVENANTS
6.1. Board of Directors. Upon the execution of this Agreement,
the number of directors constituting the Company's Board of Directors
shall be increased to five, and Messrs. Xxxxxx Xxxxxxxxx and Xxxxxxx
Bienvenue shall be nominated and duly elected to each serve as directors
on the Company's Board of Directors.
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6.2. Tax Compliance. The Company shall pay all transfer, excise
or similar taxes in connection with the issuance, sale, delivery or
transfer by the Company to LUK of the Securities and shall save LUK and
any other holder of the Securities harmless without limitation as to
time against any and all liabilities with respect to such taxes. The
Company shall not be responsible for any taxes in connection with the
transfer of the Securities by the holder thereof. The obligations of
Company under this Section 6.2 shall survive the payment, prepayment or
redemption of the Securities and the termination of this Agreement.
6.3. Registration Rights. At any time after the date hereof,
upon the written request of LUK that the Company effect the registration
under the Act (which shall be a shelf registration if requested by LUK)
of all or part of the shares of Common Stock (including the Securities
upon their issuance) owned by LUK (including any affiliate of LUK or any
trust for the benefit of LUK's shareholders) and specifying the intended
method or methods of disposition thereof, the Company shall cooperate
with LUK and effect the registration under the Act of such shares as
soon as practicable after receipt of such request.
VII. CONDITIONS PRECEDENT
7.1. Conditions Precedent to Obligations of LUK. The obligation
of LUK to purchase the Securities and to consummate the transactions
contemplated by this Agreement is subject to the following conditions:
(a) LUK shall have been furnished with certificates (dated the
Closing Date and in form and substance reasonably satisfactory to LUK)
executed by an officer of the Company certifying that (i) all
representations and warranties of the Company to LUK contained herein
are true and correct in all material respects as of the Closing Date,
with the same force and effect as if made as of the Closing Date; (ii)
the Company shall have performed and complied in all material respects
with the covenants and provisions of this Agreement required to be
performed or complied with by it, on or prior to the Closing Date; and
(iii) after giving effect to the sale of Securities contemplated hereby,
the Company will not be in default under or breach of any material
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party.
(b) LUK's receipt of certificates representing the Securities
registered in LUK's name or in the name of such persons as LUK shall
direct.
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(c) LUK's receipt of a copy of the Company's certificate of
incorporation, certified as of a recent date by the Secretary of State
of the State of Delaware, and a copy of the by-laws, certified by the
Secretary or Assistant Secretary of the Company as true and correct;
(d) LUK's receipt of governmental certificates or telegrams
evidencing that the Company is organized and in good standing in the
State of Delaware;
(e) The Company and Provence Hills Development Company, LLC have
entered into a Development Management Agreement, dated the date hereof
(the "Development Management Agreement"), a copy of which has been
delivered to LUK, and each of such entities shall have delivered a
certificate that such agreement is in full force and effect on the
Closing Date and neither party to such agreement has given notice of
termination to the other party to such agreement.
7.2. Conditions Precedent to Obligations of the Company. The
obligation of the Company to issue the Securities pursuant to this
Agreement is subject to the following conditions:
(a) The Company shall have been furnished with certificates
(dated the Closing Date and in form and substance reasonably
satisfactory to the Company) executed by an officer of LUK certifying
that (i) all representations and warranties of LUK to the Company
contained herein are true and correct in all material respects as of the
Closing Date, with the same force and effect as if made as of the
Closing Date; and (ii) LUK shall have performed and complied in all
material respects with the covenants and provisions of this Agreement
required to be performed or complied with by it, on or prior to the
Closing Date.
(b) Provence Hills Development Company, LLC shall have entered
into the Development Management Agreement.
(c) The Company shall have been furnished with an opinion of
Weil, Gotshal & Xxxxxx LLP dated the Closing Date to the effect that the
issuance of the Securities pursuant to this Agreement shall not result
in the application of any limitations under Section 382 or Section 383
of the Internal Revenue Code of 1986, as amended (the "Code"), on the
use of the Tax Benefits (as defined in the Company's Restated
Certificate of Incorporation); provided, however, that if the Company
fails to receive the foregoing opinion, the Company will be obligated to
deliver such lesser number of shares under Article 2 hereof, which
number shall constitute the Securities under this Agreement, as shall
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result in increases calculated under Sections 382(g)(1)(A) and (B) of
the Code aggregating 49.8 percentage points during the applicable
"testing period" as defined in Section 382 of the Code culminating on
the Closing Date, and the Company shall be furnished with an opinion of
Weil, Gotshal & Xxxxxx LLP to the effect that the issuance of the
Securities (as so adjusted) pursuant to this Agreement shall not result
in the application of any Section 382 limitation on the use of the Tax
Benefits.
VIII. CLOSING
8.1. Closing Date. (a) The closing of the sale and purchase of
the Shares provided for in Article III hereof (the "Closing") shall take
place at the offices of Weil, Gotshal & Xxxxxx LLP, New York, New York
at 10:00 a.m. (New York City time) (or at such time and at such place as
the parties may designate) on the second business day following the date
on which each of the conditions specified in Article VII hereof has been
fulfilled (or waived by the party entitled to waive that condition),
provided that in no event shall the Closing take place prior to July 5,
1999. The date on which the Closing occurs is referred to in this
Agreement as the "Closing Date".
(b) In the event that LUK fails to close because the conditions
set forth in Section 7.1 have not been satisfied, the Company shall
repay to LUK an amount equal to the Advance plus interest on the Advance
which shall accrue at the rate of 6% per annum from the date of deposit
of the Advance with the Company through the date such Advance is repaid
to LUK.
8.2. Liquidated Damages. If the Company fails to deliver the
Securities at the Closing (other than as a result of the exercise of its
rights under Section 7.2 hereof), then the Company shall be required to
pay the Advance to LUK and, at LUK's option, the Company shall either
(i) repurchase the shares of Common Stock owned by LUK at 200% of the
fair market value for such shares as of the Closing Date, but not less
than a price per share of $1; or (ii) pay LUK $10,000,000. The Company
and LUK agree that the payment obligation contained in the foregoing
sentence is an integral part of the transactions contemplated by this
Agreement and constitute liquidated damages and not a penalty. If the
Company fails to pay such amount to LUK, then the Company shall pay the
costs and expenses (including reasonable legal fees and expenses) in
connection with any action, including the filing of any lawsuit or other
legal action, taken to collect payment, together with interest on the
amount of any unpaid fee at the publicly announced prime rate of Chase
Manhattan Bank from the Closing Date to the date of prepayment.
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8.3. Specific Performance. The parties hereto acknowledge that
irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of
the parties under this Agreement, including the Company's obligation to
sell the Securities to LUK, may be enforced by a decree of specific
performance issued by a court of competent jurisdiction. Such remedy
shall, however, not be exclusive and shall be in addition to any other
remedies which any party may have under this Agreement or otherwise.
IX. SECURITIES LAW MATTERS
9.1. Legends. Unless the Securities are the subject of an
effective registration statement, each certificate representing the
Securities shall bear a legend substantially in the following form:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("THE ACT") OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR AN EXEMPTION THEREFROM."
X. INDEMNIFICATION AND EXPENSES
10.1. Indemnification by the Company. The Company agrees to
indemnify, defend and hold LUK and its respective officers, directors,
employees, agents and controlling persons (collectively, the "LUK
Indemnitees") harmless from and against any and all expenses, losses,
claims, damages and liabilities which are incurred by or threatened
against the LUK Indemnitees, or any of them, including, without
limitation, reasonable attorneys' fees and expenses, caused by, or in
any way resulting from or relating to the Company's breach of any of the
representations, warranties, covenants or agreements of the Company set
forth in this Agreement.
10.2. Indemnification by LUK. LUK agrees to indemnify, defend
and hold harmless the Company and its respective officers, directors,
employees, agents, partners and controlling persons (collectively, the
"Company Indemnitees") harmless from and against any and all expenses,
losses, claims, damages and liabilities which are incurred by or
threatened against the Company Indemnitees, or any of them, including,
without limitation, reasonable attorneys' fees and expenses, caused by,
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or in any way resulting from or relating to LUK's breach of any of the
representations, warranties, covenants or agreements of LUK set forth in
this Agreement.
XI. MISCELLANEOUS
11.1. Notices. Whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication
shall or may be given to or served upon any of the parties by another,
or whenever any of the parties desires to give or serve upon another any
such communication with respect to this Agreement, each such notice,
demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person with receipt
acknowledged or by registered or certified mail, return receipt
requested, postage prepaid, or by telecopy and confirmed by telecopy
answerback addressed as follows:
If to Company at:
HomeFed Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxxxx X. Xxxx
Telecopy Number: (000) 000-0000
With a copy to:
Pillsbury Madison & Sutro LLP
000 Xxxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: K. Xxxxxxx Xxxxxxx
Telecopy Number: (000) 000-0000
If to LUK at:
Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, President
Telecopy Number: (000) 000-0000
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with a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Every notice,
demand, request, consent, approval, declaration or other communication
hereunder shall be deemed to have been duly given or served on the date
on which personally delivered, with receipt acknowledged, telecopied and
confirmed by telecopy answerback, or three (3) business days after the
same shall have been deposited with the United States mail.
11.2. Binding Effect; Benefits. Except as otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit of
the parties to this Agreement and their respective successors,
transferees and permitted assigns. Except as expressly set forth
herein, nothing in this Agreement, express or implied, is intended or
shall be construed to give any person other than the parties to this
Agreement or their respective successors, transferees or permitted
assigns any legal or equitable right, remedy or claim under or in
respect of any agreement or any provision contained herein.
11.3. Waiver. Either party hereto may by written notice to the
other (a) extend the time for the performance of any of the obligations
or other actions of the other party under this Agreement; (b) waive
compliance with any of the conditions or covenants of the other party
contained in this Agreement; and (c) waive or modify performance of any
of the obligations of the other party under this Agreement. Except as
provided in the preceding sentence, no action taken pursuant to this
Agreement, including, without limitation, any investigation by or on
behalf of either party, shall be deemed to constitute a waiver by the
party taking such action, of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by
either party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any preceding or succeeding
breach and no failure by either party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise
the same at any subsequent time or times hereunder.
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11.4. Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by LUK and the
Company.
11.5. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by Company. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by LUK without the prior written consent of the
Company; provided, however, that without the consent of the Company LUK
may assign this Agreement and any or all rights or obligations hereunder
(including, without limitation, LUK's rights to purchase the Securities
and LUK's rights to seek indemnification hereunder) to any affiliate of
LUK or to any trust for the benefit of LUK's shareholders. Upon any
such permitted assignment, the references in this Agreement to LUK shall
also apply to any such assignee unless the context otherwise requires;
provided, however, that the conditions set forth in Section 7.2 shall
continue to apply to LUK.
11.6. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the principles thereof regarding conflict of laws.
11.7. 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.
11.8. Severability. In the event that any one or more of the
provisions contained in this Agreement shall be determined to be
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision or
provisions in every other respect and the remaining provisions of this
Agreement shall not be in any way impaired.
11.9. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
HOMEFED CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman of the Board
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Orlando
------------------------------
Name: Xxxxxx X. Orlando
Title: Vice President and Chief
Financial Officer
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