EXHIBIT 2
STOCK PURCHASE AGREEMENT
BETWEEN
HOMEFED CORPORATION
AND
LEUCADIA NATIONAL CORPORATION
Dated as of August 14, 1998
NYFS04...:\30\76830\0001\2475\AGR7238W.59H
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
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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 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).
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 under the certificate of
incorporation of the Company or the execution, delivery or performance of this
Agreement or the Restated Certificate of Incorporation.
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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).
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,
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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 result in increases
calculated under Sections
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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.
8.3. Specific Performance. The parties hereto acknowledge that irreparable
damage would result if this Agreement were not specifically enforced, and they
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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, 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.
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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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