Exhibit 3.6
CERTIFICATE OF
AMENDMENT OF THE
CERTIFICATE OF INCORPORATION
OF
LEUCADIA NATIONAL CORPORATION
UNDER SECTION 805 OF THE BUSINESS CORPORATION LAW
Pursuant to the provisions of Section 805 of the Business Corporation
Law, the undersigned hereby certifies:
1. The name of the Corporation is Leucadia National Corporation (the
"Corporation"). The name under which the Corporation was formed is
Talcott National Corporation.
2. The date the Certificate of Incorporation was filed by the Department
of State was May 24, 1968.
3. The Corporation is authorized to issue a total of 156,000,000 shares,
consisting of 150,000,000 shares of Common Stock of the par value $1.00
per share and 6,000,000 shares of Preferred Stock of par value $1.00
per share. An amendment of the Corporation's Certificate of
Incorporation effected by this Certificate of Amendment to increase the
number of shares of Common Stock which the Corporation shall have
authority to issue is hereby made.
To effect the foregoing, Article FOURTH is hereby amended and shall
read in its entirety as follows:
FOURTH: The aggregate number of shares of capital stock of all
classes which the Corporation shall have authority to issue is 306,000,000,
divided into 6,000,000 shares, having a par value of $1 each, which are
designated Preferred Stock and are issuable in series, and 300,000,000 shares,
having a par value of $1 each, which are designated Common Stock.
No holder of shares of any class or series of stock of the
Corporation, whether now or hereafter authorized or outstanding, shall have any
pre-emptive, preferential or other right to subscribe for or purchase any shares
of any class or series of capital stock of the Corporation, whether now or
hereafter authorized or outstanding, or any bonds, notes, obligations, options,
warrants, rights or other securities which the Corporation may at any time issue
or sell, whether or not the same be convertible into or exercisable for the
purchase of any class or series of capital stock of the Corporation, it being
intended by this paragraph that all pre-emptive rights of any kind applicable to
the securities of the Corporation are eliminated.
The designations, relative rights, preferences and limitations
of each class of the Corporation's capital stock and each series thereof, to the
extent fixed in the Corporation's Certificate of Incorporation, and the
authority vested in the Board of Directors of the Corporation to establish and
designate series of the Preferred Stock and to fix variations in the relative
rights, preferences and limitations between such series, are as follows:
I. PREFERRED STOCK
General Provisions Relating to All Series
1. The Preferred Stock shall consist of one class, may be
issued from time to time in one or more series, and the shares of any one series
thereof may be issued from time to time. All shares of the Preferred Stock of
the same series shall be identical in all respects, except that shares of any
one series issued at different times may differ as to the dates, if any, from
which dividends thereon may accumulate. All shares of Preferred Stock of all
series shall be identical in all respects set forth in sections 1 through 5
hereof (except as otherwise permitted in such sections) and shall be of equal
rank as set forth in sections 2 and 3 below. Subject to the foregoing, (i) the
designations, relative rights, preferences and limitations of the shares of each
such series may differ from those of any and all other such series authorized
and/or outstanding and (ii) the Board of Directors of the Corporation is hereby
expressly granted authority to establish and designate series and to fix with
respect to any such series, or alter in any one or more respects from time to
time, by resolution or resolutions adopted prior to the issuance of any shares
of such series, and by filing a certificate under Section 805 of the Business
Corporation Law, (a) the number of shares constituting such series and the
designation thereof, (b) the rate of dividends, (c) redemption terms (including
purchase and sinking funds provisions), (d) conversion rights into any class or
series of capital stock of the Corporation, (e) liquidation preferences, (f)
voting rights and (g) any other lawful rights, preferences and limitations.
2. Unless otherwise provided in the resolutions creating or
altering a series, the holders of Preferred Stock of each series shall be
entitled to receive, as and when declared by the Board of Directors, out of
funds or other assets of the Corporation legally available therefor, cumulative
dividends at the annual rate fixed by the Board of Directors with respect to
such series, and no more, payable in cash, on such dates in each year as the
Board of Directors may determine, such dividends with respect to each series to
be cumulative from the date or dates fixed by the Board of Directors with
respect to such series. The first dividend or distribution with respect to
shares of any particular series not issued on a dividend date may be fixed by
the Board of Directors at more or less than the regular periodic dividend or
distribution thereon. In the event Preferred Stock of more than one series is
outstanding, the Corporation in making any dividend payment upon Preferred Stock
shall make dividend payments ratably upon all outstanding shares of Preferred
Stock of all series in proportion to the respective amounts of dividends accrued
and payable thereon to the date of such dividend payment. If the dividends or
distributions on any shares of Preferred Stock shall be in arrears, the holders
thereof shall not be entitled to any interest, or sum of money in lieu of
interest, thereon. In no event, so long as any Preferred Stock shall be
outstanding, shall any dividend whatsoever, whether in cash, stock or otherwise,
other than a dividend payable in stock of the Corporation of a class junior to
the Preferred Stock, be declared or paid, or any distribution made, on any stock
of the Corporation of a class ranking junior to the Preferred Stock, nor shall
any shares of any such junior class of stock be purchased or acquired for a
consideration by the Corporation or be redeemed by the Corporation, nor shall
any moneys be paid to the holders of, or set aside or made available for a
sinking fund for the purchase or redemption of, any shares of any such junior
class of stock unless (i) all dividends and distributions on all outstanding
shares of Preferred Stock of all series for all past dividend periods shall have
been paid and all dividends payable on or before the date of such dividend,
distribution, purchase, acquisition, redemption, setting aside or making
available shall have been paid or declared and a sum sufficient for the payment
thereof set apart, and (ii) the Corporation shall have paid or set aside all
amounts, if any, theretofore required to be paid or set aside as and for all
matured purchase fund and sinking fund obligations, if any, for the shares of
Preferred Stock of all series or to satisfy any distributions declared with
respect to any shares of Preferred Stock of any series. The holders of Preferred
Stock shall not be entitled to participate in any dividends payable on junior
stock or to share in the earnings or profits of the Corporation other than or in
excess of that hereinabove provided.
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3. In the event of any dissolution, liquidation or winding-up
of the Corporation, whether voluntary or involuntary, the holders of each series
of Preferred Stock shall be entitled to receive, before any distribution or
payment is made upon any stock ranking junior to the Preferred Stock, such
amount of cash, shares, bonds or other property (which amount may vary depending
on whether such dissolution, liquidation or winding-up is voluntary or
involuntary) to which each such outstanding series of Preferred Stock shall be
entitled in accordance with the provisions thereof together with an amount in
cash equal to all dividends accrued and unpaid thereon to the date of such
distribution or payment, and shall be entitled to no further payment. If, upon
any such liquidation, dissolution or winding-up, the assets of the Corporation
distributable among the holders of the Preferred Stock shall be insufficient to
permit the payment in full to such holders of the amounts to which they are
respectively entitled, the assets so distributable shall be distributed among
the holders of the Preferred Stock then outstanding ratably in proportion to the
amounts to which they are respectively entitled. For the purposes of this
Section 3, neither the voluntary sale, lease, exchange or transfer of all or
substantially all of the Corporation's property or assets to, nor the
consolidation or merger of the Corporation with, one or more corporations, nor a
reduction of the capital stock or stated capital of the Corporation, shall be
deemed to be a dissolution, liquidation or winding-up, voluntary or involuntary.
4. The Corporation, at the option of the Board of Directors,
may, subject to the provisions applicable to such series, redeem at any time or
times, and from time to time, all or any part of the shares of any series of
Preferred Stock subject to redemption by paying for each share such price or
prices as shall have been fixed by the Board of Directors prior to the issuance
of such series, plus an amount equal to dividends accrued and unpaid thereon to
the date fixed for redemption, plus premiums in the amounts, if any, so fixed
with respect to such series (the total amount per share so payable upon any
redemption of shares of any series of Preferred Stock being herein referred to
as the "redemption price"). Except as otherwise provided in the provisions
relating to a particular series of Preferred Stock, not less than 15 days nor
more than 60 days prior written notice shall be given to the holders of record
of the shares so to be redeemed, which notice shall be given by mail, postage
prepaid, addressed to such holders at their respective addresses as shown on the
books of the Corporation. Such notice shall specify the shares called for
redemption, the redemption price and the place at which, and the date on which,
the shares called for redemption will, upon presentation and surrender of the
stock certificates evidencing such shares, be redeemed. In case of redemption of
less than all of the outstanding Preferred Stock of any one series, such
redemption (unless otherwise stated in the provisions relating to such series)
may be made pro rata or the shares to be redeemed may be chosen by lot, in such
manner as the Board of Directors may determine. No failure to deliver or mail
such notice nor any defect therein or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any shares so to be redeemed.
If such notice of redemption shall have been duly given, and
if on or before the redemption date specified in such notice all funds necessary
for such redemption shall have been set aside so as to be available therefor,
then, notwithstanding that any certificate for the shares of such Preferred
Stock so called for redemption shall not have been surrendered for cancellation,
the shares represented thereby shall, from and after the date fixed for
redemption, no longer be deemed outstanding, the right to receive dividends
thereon shall cease to accrue from and after the date of redemption so fixed,
and all rights with respect to such shares of Preferred Stock so called for
redemption shall forthwith at the close of business on such redemption date
cease and terminate, except the right of the holders thereof to receive the
amount payable upon redemption thereof, but without interest; provided, however,
that the Corporation may, after giving such notice of any such redemption and
prior to the redemption date specified in such notice, deposit in trust, for the
account of the holders of such Preferred Stock to be redeemed, with a bank or
trust company having an office in the Borough of Manhattan, City, County and
State of New York and having a capital, undivided profits and surplus
aggregating at least $50,000,000, all funds necessary for such redemption, and,
upon such deposit in trust, all shares of such Preferred Stock with respect to
which such deposit shall have been made shall no longer be deemed to be
outstanding, and all rights with respect to such shares of such Preferred Stock
shall forthwith cease and terminate, except (a) the right of the holders thereof
to receive the amount payable upon the redemption thereof, but without interest,
and (b) the right of the holders thereof to exercise on or before the date fixed
for redemption the rights, if any, not having theretofore expired, which the
holders thereof shall have to convert the shares so called for redemption into,
or exchange such shares for, shares of stock of any other class or classes or of
any other series of the same or any other class or classes of stock of the
Corporation.
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Any funds so deposited which shall not be required for such
redemption because of the exercise of any right of conversion or exchange or
otherwise subsequent to the date of such deposit shall be returned to the
Corporation forthwith. Any interest accrued on any funds so deposited shall
belong to the Corporation and be paid to it from time to time. Any funds so
deposited by the Corporation and unclaimed at the end of six years from the date
fixed for such redemption shall be repaid to the Corporation, upon its request,
after which repayment the holders of such shares so called for redemption shall
look only to the Corporation for the payment of the redemption price thereof.
If at any time the Corporation shall have failed to pay
dividends in full on all series of Preferred Stock then outstanding, thereafter
and until such dividends, including all accrued and unpaid dividends, shall have
been paid in full, or declared and funds sufficient for the payment thereof set
aside for payment, the Corporation shall not redeem or purchase less than all of
the Preferred Stock at such time outstanding; provided, however, that nothing
shall prevent the Corporation from completing the purchase of shares of
Preferred Stock for which a purchase contract has been entered into, or the
redemption of any shares of Preferred Stock for which notice of redemption has
been given, prior to such default.
5. Except as otherwise specifically provided with respect to a
particular series of Preferred Stock, as hereinafter in this section 5 provided,
and as required by law, the Preferred Stock shall have no voting rights.
Whenever dividends payable on the Preferred Stock shall be in
default in an aggregate amount equivalent to at least six quarterly dividends on
any of the shares of Preferred Stock then outstanding, the number of directors
constituting the Board of Directors of the Corporation shall be increased by
two, and the holders of the Preferred Stock, voting as a class (whether or not
otherwise entitled to vote for the election of directors), shall be entitled to
elect two directors of the Corporation to fill such newly-created directorships.
Such directors shall serve (subject to the last sentence of the next paragraph
of this section 5) until the next annual meeting of shareholders and until their
successors are elected and qualify. Whenever such right of the holders of the
Preferred Stock shall have vested, such right may be exercised initially either
at a special meeting of such holders called as provided herein, or at any annual
meeting of shareholders, and thereafter at annual meetings of shareholders. The
right of the holders of the Preferred Stock, voting as a class, to elect members
of the Board of Directors of the Corporation as aforesaid shall continue until
such time as the dividends accumulated on the Preferred Stock shall have been
paid in full, at which time the special right of the holders of the Preferred
Stock so to vote separately as a class for the election of directors shall
terminate, subject to renewal and divestment from time to time upon the same
terms and conditions.
At any time after the voting power to elect two additional
members of the Board of Directors of the Corporation has become vested in the
holders of the Preferred Stock, the Secretary of the Corporation may, and upon
the request of the holders of record of at least 5% of the Preferred Stock then
outstanding addressed to him, shall, call a special meeting of the holders of
Preferred Stock for the purpose of electing such directors, to be held within 50
days after the receipt of such request; provided, however, that the Secretary
need not call any such special meeting if the annual meeting of shareholders is
to convene within 90 days after the receipt by the Secretary of such request.
Such meeting shall be held at such place as shall be specified in the notice and
upon notice as provided in the By-Laws of the Corporation for the holding of
special meetings of shareholders. If such meeting shall not be so called within
20 days after the receipt of such request (not including, however, a request
falling within the proviso of the second preceding sentence), then the holders
of record of at least 5% of the Preferred Stock then outstanding may designate
in writing one of their number to call such meeting, and the person so
designated shall call such meeting at the place and upon the notice above
provided, and for that purpose shall have access to the stock books of the
Corporation. At any such special or annual meeting at which the holders of the
Preferred Stock shall have the right to vote for the election of such two
directors as aforesaid, the holders of 33 1/3% of the then outstanding Preferred
Stock present in person or represented by proxy shall be sufficient to
constitute a quorum of said class for the election of such two directors and for
no other purpose, and the vote of the holders of a plurality of the Preferred
Stock so present at any such meeting at which there shall be such a quorum shall
be sufficient to elect two directors. Whenever the holders of the Preferred
Stock shall be divested of such voting right hereinabove provided, the directors
so elected by the Preferred Stock shall thereupon cease to be directors of the
Corporation and thereupon the number of directors shall be reduced by two.
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Every shareholder entitled to vote at any particular time in
accordance with the foregoing two paragraphs shall have one vote for each share
of Preferred Stock held of record by him and entitled to vote.
6. As used in connection with any series of Preferred Stock,
the terms "junior stock", "junior class of stock" and "stock ranking junior to
the Preferred Stock" shall mean and refer to the Common Stock and any other
class or series of stock of the Corporation hereafter authorized which shall
rank junior to the Preferred Stock with respect to the declaration and payment
of dividends thereon and the distribution of amounts with respect thereto
payable in the event of any liquidation, dissolution or winding-up of the
Corporation.
II. COMMON STOCK
Subject to all of the rights of the Preferred Stock, dividends
may be paid upon the Common Stock as and when declared by the Board of Directors
out of funds and other assets legally available for the payment of dividends.
The Board of Directors may declare a dividend or distribution upon the Common
Stock in shares of any class or series of capital stock of the Company.
In the event of any liquidation, dissolution or other
winding-up of the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock shall have been paid in full the amounts to which
they respectively shall be entitled, or an amount sufficient to pay the
aggregate amount to which such holders shall be entitled shall have been
deposited in trust with a bank or trust company having its principal office in
the Borough of Manhattan, City, County and State of New York, having a capital,
undivided profits and surplus aggregating at least $50,000,000, for the benefit
of the holders of the Preferred Stock, the remaining net assets of the
Corporation shall be distributed pro rata to the holders of the Common Stock.
Except as otherwise expressly provided with respect to the
Preferred Stock and except as otherwise may be required by law, the Common Stock
shall have the exclusive right to vote for the election of directors and for all
other purposes and each holder of Common Stock shall be entitled to one vote for
each share held.
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III. TRANSFER RESTRICTIONS
(a) Certain Definitions. As used in this Part III of Article
FOURTH, the following terms have the following respective meanings:
"Corporation Securities" means (i) shares of common stock of
the Corporation, (ii) shares of preferred stock of the Corporation, (iii)
warrants, rights, or options (within the meaning of Treasury Regulation
ss.1.382-2T(h)(4)(v)) to purchase stock of the Corporation, and (iv) any other
interests that would be treated as "stock" of the Corporation pursuant to
Treasury Regulation ss.1.382-2T(f)(18).
"Percentage Stock Ownership" means percentage stock ownership
as determined in accordance with Treasury Regulation ss.1.382-2T(g), (h), (j),
and (k).
"Five-Percent Shareholder" means a Person or group of Persons
that is identified as a "5-percent shareholder" of the Corporation pursuant to
Treasury Regulation ss.1.382-2T(g)(1).
"Person" means an individual, corporation, estate, trust,
association, company, partnership, joint venture or similar organization.
"Prohibited Transfer" means any purported Transfer of
Corporation Securities to the extent that such Transfer is prohibited and void
under this Part III of Article FOURTH.
"Restriction Release Date" means the earlier of December 31,
2024, the repeal of Section 382 of the Internal Revenue Code of 1986, as amended
(the "Code") (and any comparable successor provision) ("Section 382"), or the
beginning of a taxable year of the Corporation (or any successor thereof) to
which no Tax Benefits may be carried forward.
"Tax Benefits" means the net operating loss carryovers,
capital loss carryovers, general business credit carryovers, alternative minimum
tax credit carryovers and foreign tax credit carryovers, as well as any "net
unrealized built-in loss" within the meaning of Section 382, of the Corporation
or any direct or indirect subsidiary thereof.
"Transfer" means any direct or indirect sale, transfer,
assignment, conveyance, pledge, or other disposition. A Transfer also shall
include the creation or grant of an option (within the meaning of Treasury
Regulation ss.1.382-2T(h)(4)(v)). A Transfer shall not include an issuance or
grant of Corporation Securities by the Corporation.
"Treasury Regulation ss.1.382-2T" means the temporary income
tax regulations promulgated under Section 382, and any successor regulations.
References to any subsection of such regulations include references to any
successor subsection thereof.
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(b) Restrictions. Any attempted Transfer of Corporation
Securities prior to the Restriction Release Date, or any attempted Transfer of
Corporation Securities pursuant to an agreement entered into prior to the
Restriction Release Date, shall be prohibited and void ab initio to the extent
that, as a result of such Transfer (or any series of Transfers of which such
Transfer is a part), either (1) any Person or group of Persons shall become a
Five-Percent Shareholder, or (2) the Percentage Stock Ownership interest in the
Corporation of any Five-Percent Shareholder shall be increased; provided,
however, that nothing herein contained shall preclude the settlement of any
transaction entered into through the facilities of the New York Stock Exchange,
Inc. in the Corporation Securities.
(c) Certain Exceptions. The restrictions set forth in
paragraph (b) of this Part III of Article FOURTH shall not apply to an attempted
Transfer if the transferor or the transferee obtains the approval of the Board
of Directors of the Corporation. As a condition to granting its approval, the
Board of Directors may, in its discretion, require an opinion of counsel
selected by the Board of Directors that the Transfer shall not result in the
application of any Section 382 limitation on the use of the Tax Benefits.
(d) Treatment of Excess Securities.
(i) No employee or agent of the Corporation shall record any
Prohibited Transfer, and the purported transferee of such a Prohibited Transfer
(the "Purported Transferee") shall not be recognized as a shareholder of the
Corporation for any purpose whatsoever in respect of the Corporation Securities
which are the subject of the Prohibited Transfer (the "Excess Securities").
Until the Excess Securities are acquired by another Person in a Transfer that is
not a Prohibited Transfer, the Purported Transferee shall not be entitled with
respect to such Excess Securities to any rights of shareholders of the
Corporation, including without limitation, the right to vote such Excess
Securities and to receive dividends or distributions, whether liquidating or
otherwise, in respect thereof, if any. Once the Excess Securities have been
acquired in a Transfer that is not a Prohibited Transfer, the Securities shall
cease to be Excess Securities.
(ii) If the Board of Directors determines that a Transfer of
Corporation Securities constitutes a Prohibited Transfer then, upon written
demand by the Corporation, the Purported Transferee shall transfer or cause to
be transferred any certificate or other evidence of ownership of the Excess
Securities within the Purported Transferee's possession or control, together
with any dividends or other distributions that were received by the Purported
Transferee from the Corporation with respect to the Excess Securities
("Prohibited Distributions"), to an agent designated by the Board of Directors
(the "Agent"). The Agent shall thereupon sell to a buyer or buyers, which may
include the Corporation, the Excess Securities transferred to it in one or more
arm's-length transactions (over the New York Stock Exchange, if possible);
provided, however, that the Agent shall effect such sale or sales in an orderly
fashion and shall not be required to effect any such sale within any specific
time frame if, in the Agent's discretion, such sale or sales would disrupt the
market for the Corporation Securities or otherwise would adversely affect the
value of the Corporation Securities. If the Purported Transferee has resold the
Excess Securities before receiving the Corporation's demand to surrender the
Excess Securities to the Agent, the Purported Transferee shall be deemed to have
sold the Excess Securities for the Agent, and shall be required to transfer to
the Agent any Prohibited Distributions and the proceeds of such sale, except to
the extent that the Agent grants written permission to the Purported Transferee
to retain a portion of such sales proceeds not exceeding the amount that the
Purported Transferee would have received from the Agent pursuant to paragraph
(d)(iii) of this Article FOURTH if the Agent rather than the Purported
Transferee had resold the Excess Securities.
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(iii) The Agent shall apply any proceeds of a sale by it of
Excess Securities and, if the Purported Transferee had previously resold the
Excess Securities, any amounts received by it from a Purported Transferee, as
follows: (1) first, such amounts shall be paid to the Agent to the extent
necessary to cover its costs and expenses incurred in connection with its duties
hereunder; (2) second, any remaining amounts shall be paid to the Purported
Transferee, up to the amount paid by the Purported Transferee for the Excess
Securities (or the fair market value, calculated on the basis of the closing
market price for Corporation Securities on the day before the Transfer, of the
Excess Securities at the time of the attempted Transfer to the Purported
Transferee by gift, inheritance, or similar Transfer), which amount (or fair
market value) shall be determined in the discretion of the Board of Directors;
and (3) third, any remaining amounts, subject to the limitations imposed by the
following proviso, shall be paid to the Leucadia Foundation; provided, however,
that (i) if the Leucadia Foundation shall have terminated prior to its receipt
of such amounts, such remaining amounts shall be paid to one or more
organizations qualifying under Section 501(c)(3) of the Code (and any comparable
successor provision) ("Section 501(c)(3)") selected by the Board of Directors,
and (ii) if the Excess Securities (including any Excess Securities arising from
a previous Prohibited Transfer not sold by the Agent in a prior sale or sales),
represent a 5% or greater Percentage Stock Ownership interest in any class of
Corporation Securities, then any such remaining amounts to the extent
attributable to the disposition of the portion of such Excess Securities
exceeding a 4.99 Percentage Stock Ownership interest in such class shall be paid
to one or more organizations qualifying under Section 501(c)(3) selected by the
Board of Directors. The recourse of any Purported Transferee in respect of any
Prohibited Transfer shall be limited to the amount payable to the Purported
Transferee pursuant to clause (2) of the preceding sentence. In no event shall
the proceeds of any sale of Excess Securities pursuant to this Part III of
Article FOURTH inure to the benefit of the Corporation.
(iv) If the Purported Transferee fails to surrender the Excess
Securities or the proceeds of a sale thereof to the Agent within thirty business
days from the date on which the Corporation makes a demand pursuant to paragraph
(d)(ii) of this Article, then the Corporation shall institute legal proceedings
to compel the surrender.
(v) The Corporation shall make the demand described in
paragraph (d)(ii) of this Part III of Article FOURTH within thirty days of the
date on which the Board of Directors determines that the attempted Transfer
would result in Excess Securities; provided, however, that if the Corporation
makes such demand at a later date, the provisions of this Part III of Article
FOURTH shall apply nonetheless.
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(e) Bylaws, Legends, etc.
(i) The Bylaws of the Corporation shall make appropriate
provisions to effectuate the requirements of this Part III of Article FOURTH.
(ii) All certificates representing Corporation Securities
issued after the effectiveness of this Part III of Article FOURTH shall bear a
conspicuous legend as follows:
THE TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT
TO RESTRICTIONS PURSUANT TO PART III OF ARTICLE FOURTH OF THE
CERTIFICATE OF INCORPORATION OF LEUCADIA NATIONAL CORPORATION
REPRINTED IN ITS ENTIRETY ON THE BACK OF THIS CERTIFICATE.
(iii) The Board of Directors of the Corporation shall have the
power to determine all matters necessary to determine compliance with this Part
III of Article FOURTH, including without limitation (1) whether a new
Five-Percent Shareholder would be required to be identified in certain
circumstances, (2) whether a Transfer is a Prohibited Transfer, (3) the
Percentage Stock Ownership in the Corporation of any Five-Percent Shareholder,
(4) whether an instrument constitutes a Corporation Security, (5) the amount (or
fair market value) due to a Purported Transferee pursuant to clause (2) of
paragraph (d)(iii) of this Part III of Article FOURTH, and (6) any other matters
which the Board of Directors determines to be relevant; and the good faith
determination of the Board of Directors on such matters shall be conclusive and
binding for all the purposes of this Part III of Article FOURTH.
-----------------------------
4. The foregoing amendment was approved by the Board of Directors at a
meeting on March 3, 2005 and by the holders of a majority of all
outstanding shares entitled to vote thereon at a meeting of
shareholders on May 17, 2005, and thereby duly adopted in accordance
with the provisions of Section 803 of the Business Corporation Law of
the State of New York.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of the Certificate of Incorporation to be executed by a duly
authorized officer as of the 17th day of May , 2005.
LEUCADIA NATIONAL CORPORATION
By: /s/Joseph A. Orlando
------------------------------------
Name: Joseph A. Orlando
Title: Vice President and
Chief Financial Officer
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