EXHIBIT 4.8
LEUCADIA CAPITAL TRUST I
$150,000,000 8.65% CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
LEUCADIA NATIONAL CORPORATION
REGISTRATION RIGHTS AGREEMENT
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New York, New York
January 21, 1997
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Leucadia Capital Trust I (the "Trust"), a statutory
business trust formed under the laws of the state of Delaware by
Leucadia National Corporation (the "Company"), proposes to issue
and sell to the Initial Purchasers (the "Initial Purchasers")
named in the Purchase Agreement of even date herewith (the
"Purchase Agreement"), for whom you are acting as representative
(the "Representative"), the 8.65% Capital Trust Pass-through
Securities (the "Capital Securities") of the Trust. The issue
and sale of the Capital Securities pursuant to the Purchase
Agreement is referred to herein as the "Initial Placement." The
Capital Securities, together with the guarantee of the Company
with respect thereto (the "Guarantee") and the 8.65% Junior
Subordinated Deferrable Interest Debentures due 2027 of the
Company (the "Subordinated Debt Securities"), are collectively
referred to herein as the "Registrable Securities." As an
inducement to the Initial Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations
of the Initial Purchasers thereunder, the Company and the Trust
agree with you, (i) for your benefit and the benefit of the other
Initial Purchasers and (ii) for the benefit of the holders from
time to
time of the Registrable Securities and the Exchange Securities
(as defined below), including the Initial Purchasers (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
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definition shall have their respective meanings set forth in the
Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and
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the rules and regulations of the Commission promulgated
thereunder.
"Affiliate" of any specified person means any other
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person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether
by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Capital Securities" has the meaning set forth in the
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preamble hereto.
"Closing Date" has the meaning set forth in the
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Purchase Agreement.
"Commission" means the Securities and Exchange
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Commission.
"Company" has the meaning set forth in the preamble
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hereto.
"DTC" means the Depository Trust Company.
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"Exchange Act" means the Securities Exchange Act of
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1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Exchange Offer Prospectus" means the Prospectus
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contained in the Exchange Offer Registration Statement, as it may
be amended or supplemented from time to time.
"Exchange Offer Registration Period" means the 1-year
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period following the consummation of the Registered Exchange
Offer, exclusive of any period during which any stop order shall
be in effect suspending the effectiveness of the Exchange Offer
Registration Statement or during which Exchanging Dealers have
been advised to suspend use of the Exchange Offer Prospectus in
accordance with Section 4(l) hereof, which 1-year period shall
be extended by the aggregate number of days during which any such
stop order or suspension is in effect.
"Exchange Offer Registration Statement" means a
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registration statement of the Company and the Trust on an
appropriate form under the Act with respect to the Registered
Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"Exchange Securities" means the securities of the
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Company and the Trust issued pursuant to a Registered Exchange
Offer in the same aggregate principal amount or in the same
number or liquidation amount, as the case may be, and containing
terms that are identical in all material respects to the terms of
the Registrable Securities except (i) the Exchange Securities
shall have been registered for sale under the Act to Holders and
(ii) the interest rate step-up provisions and the transfer
restrictions in the Registrable Securities will be modified or
eliminated, as appropriate, in the Exchange Securities.
"Exchanging Dealer" means any Holder (which may include
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the Initial Purchasers) which is a broker-dealer registered under
Section 15 of the Exchange Act electing to exchange Registrable
Securities, acquired for its own account as a result of market-
making activities or other trading activities, for Exchange
Securities.
"Final Offering Memorandum" means the final Offering
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Memorandum issued in connection with the Initial Placement and
dated as of January 13, 1997 relating to the Registrable
Securities.
"Guarantee" has the meaning set forth in the preamble
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hereto.
"Holder" has the meaning set forth in the preamble
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hereto.
"Initial Placement" has the meaning set forth in the
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preamble hereto.
"Initial Purchasers" has the meaning set forth in the
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preamble hereto.
"Interest Payment Date" has the meaning set forth in
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Section 3(c) hereof.
"Managing Underwriters" means the investment banker or
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investment bankers and manager or managers that shall administer
an underwritten offering.
"Prospectus" means the prospectus included in any
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Registration Statement (including, without limitation, a
prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement
in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable
Securities or the Exchange Securities, covered by such
Registration Statement, and all amendments and supplements to the
Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the
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preamble hereto.
"Registered Exchange Offer" means the offer to the
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Holders to issue and deliver to such Holders, in exchange for the
Registrable Securities, a like principal amount, stated
liquidation preference or number, as the case may be, of the
Exchange Securities.
"Registrable Securities" has the meaning set forth in
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the preamble hereto.
"Registration Statement" means any Exchange Offer
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Registration Statement or Shelf Registration Statement that
covers any of the Registrable Securities or the Exchange
Securities pursuant to the provisions of this Agreement,
amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Representative" has the meaning set forth in the
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preamble hereto.
"Shelf Registration" means a registration effected
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pursuant to Section 3 hereof.
"Shelf Registration Event" has the meaning set forth in
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Section 2(g) hereof.
"Shelf Registration Period" has the meaning set forth
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in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
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registration statement of the Company and the Trust pursuant to
the provisions of Section 3 hereof which covers some or all of
the Registrable Securities or Exchange Securities, as applicable,
on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments
and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Special Payment" has the meaning set forth in Section
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3(c) hereof.
"Subordinated Debt Securities" has the meaning set
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forth in the preamble hereto.
"Tax Contingency" has the meaning set forth in Section
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2(g) hereof.
"Trust" has the meaning set forth in the preamble
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hereto.
"underwriter" means any underwriter of Registrable
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Securities or Exchange Securities in connection with an offering
thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange
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Securities by Exchanging Dealers; Private Exchange. (a) Except
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as otherwise provided herein, the Company and the Trust shall
prepare and, not later than 120 days following the Closing Date,
shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The
Company and the Trust shall use their best efforts to cause the
Exchange Offer Registration Statement be declared effective under
the Act within 180 days of the Closing Date. The Company and the
Trust shall use their best efforts to consummate the Registered
Exchange Offer within 210 days of the Closing Date.
(b) Promptly after the Exchange Offer Registration
Statement is declared effective, the Company and the Trust shall
commence the Registered Exchange Offer, it being the objective of
such Registered Exchange Offer to enable each Holder electing to
exchange Registrable Securities for Exchange Securities (assuming
that such Holder is not an affiliate of the Company within the
meaning of the Act, acquires the Exchange Securities in the
ordinary course of such Holder's business and has no arrangements
with any person to participate in a public distribution (within
the meaning of the Act) of the Exchange Securities) to trade such
Exchange Securities from and after their receipt without any
limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer,
the Company and the Trust shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open for
not less than 30 days (or longer if required by
applicable law) after the date notice thereof is mailed
to the Holders;
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the
Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all
Registrable Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
and
(ii) issue Exchange Securities to each Holder in a
principal amount, stated liquidation preference or
number, as the case may be, equal to the Registrable
Securities accepted for exchange and canceled pursuant
to the Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers
on behalf of the Holders hereby acknowledge that, in order to
effect a Registered Exchange Offer, (i) the Company will be
required to issue new subordinated debt securities to the Trust
in exchange for a like principal amount of Subordinated Debt
Securities and (ii) the Trust will be required to issue new
capital securities in exchange for a like amount of stated
liquidation preference of Capital Securities. The parties hereto
acknowledge that the Guarantee by its express terms covers the
Exchange Securities corresponding to the Capital Securities as
well as such Capital Securities. The parties hereto further
acknowledge that the new subordinated debt securities, capital
securities and guarantee issuable as described in this paragraph,
which collectively constitute the Exchange Securities, shall be
identical in all material respects to the securities they
replace, except that (x) such Exchange Securities shall be
registered for sale under the Act to Holders and (y) the interest
rate step-up provisions and the transfer restrictions in the
securities being replaced by the Exchange Securities will be
eliminated in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust
acknowledge that, pursuant to current interpretations by the
staff of the Commission of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each
Exchanging Dealer may be deemed an "underwriter" within the
meaning of the Act and, therefore, is required to deliver a
Prospectus in connection with any resales of any Exchange
Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Registrable Securities
acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company
and the Trust shall:
(i) include the information set forth in Annex A
hereto on the cover of the Prospectus forming a part of
the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Prospectus forming a part
of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer,
and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part
of the Exchange Offer Registration Statement, and such
other information with respect to resales of the
Exchange Securities by Exchanging Dealers that the
Commission may require in connection therewith and
include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective
under the Act during the Exchange Offer Registration
Period for delivery by Exchanging Dealers in connection
with sales of Exchange Securities received pursuant to
the Registered Exchange Offer, as contemplated by
Section 4(i) below.
(g) In the event that applicable law or applicable
interpretations of the staff of the Commission do not permit the
Company and the Trust to effect the Registered Exchange Offer ,
or if the Company shall determine in good faith that there is a
reasonable likelihood that, or a material uncertainty exists as
to whether, consummation of the Registered Exchange Offer would
result in an adverse tax consequence to the Company (a "Tax
Contingency" and together with the foregoing, each a "Shelf
Registration Event"), the Company and the Trust may elect, in
lieu of the commencement of such Registered Exchange Offer, to
effect a Shelf Registration of the Registrable Securities
pursuant to Section 3 hereof.
3. Shelf Registration. (i) In the event of Shelf
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Registration Event, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective by the
Commission within 180 days of the Closing Date, (iii) if any
Initial Purchaser so requests with respect to Registrable
Securities held by it following consummation of the Registered
Exchange Offer that are not "freely tradable" Exchange
Securities, (iv) if any Holder that is a broker-dealer, is not an
affiliate of the Company or the Trust and is not eligible to
participate in the Registered Exchange Offer so requests with
respect to Registrable Securities held by it following the
consummation of the Registered Exchange Offer that are not
"freely tradable" Exchange Securities (it being understood that,
for purposes of this Section 3, (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information
required by Items 507 and/or 508 of Regulation S-K under the Act
in connection with sales of Exchange Securities acquired in
exchange for such Registrable Securities shall result in such
Exchange Securities being not "freely tradable" but (y) the
requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Registrable Securities
acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not
"freely tradable"), the following provisions shall apply:
(a) The Company and the Trust shall, as promptly as
practicable, file with the Commission the Shelf Registration
Statement covering resales of the Registrable Securities or the
Exchange Securities, as applicable, by the Holders from time to
time in accordance with the methods of distribution elected by
such Holders and set forth in such Shelf Registration Statement,
and use their best efforts to cause the Shelf Registration
Statement to be declared effective under the Act by the 210th day
(or, if a Shelf Registration Event exists on the 210th day
following the Closing Date, by the 240th day) after the Closing
Date (or promptly in the event of a request by an Initial
Purchaser); provided, that with respect to Exchange Securities
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received by an Initial Purchaser in exchange for Registrable
Securities constituting any portion of an unsold allotment, the
Company and the Trust may, if permitted by current
interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of their obligations under this
paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement; and provided further, that with
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respect to a Shelf Registration Statement required pursuant to
clause (ii) of the preceding paragraph, the consummation of a
Registered Exchange Offer shall relieve the Company and the Trust
of their obligations under this Section 3(a) but only in respect
of their obligations under such clause (ii).
(b) The Company and the Trust shall each use its best
efforts to keep effective the Shelf Registration Statement until
three years after the Closing Date, or, if Rule 144(k) under the
Act is amended to provide a shorter restrictive period, such
shorter period (or until one year (plus the aggregate number of
days during which any stop order is in effect in respect of such
Shelf Registration Statement or during which use of the relevant
prospectus
has been suspended pursuant to Section 4(l) hereof) after its
effective date if such Shelf Registration Statement is filed at
the request of an Initial Purchaser) or such shorter period that
will terminate when all the Registrable Securities or Exchange
Securities, as applicable, covered by such Shelf Registration
Statement have been sold pursuant thereto (in any such case, such
period being called the "Shelf Registration Period").
Furthermore, the Company and the Trust shall each use its best
efforts, upon the effectiveness of the Shelf Registration
Statement, to promptly upon the request of any Holder to take any
action reasonably necessary to register the sale of any
Registrable Securities or Exchange Securities of such Holder and
compliance by such Holder with the terms hereof and to identify
such Holder as a selling securityholder, provided that such
Holder provides the Company with all information reasonably
necessary to effect such registration. The Company and the Trust
shall be deemed not to have used their best efforts to keep the
Shelf Registration Statement effective during the requisite
period if either the Company or the Trust voluntarily takes any
action that would result in Holders of securities covered thereby
not being able to offer and sell such securities during that
period, unless (i) such action is required by applicable law, or
(ii) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture
of assets, so long as the Company promptly thereafter complies
with the requirements of Section 4(l) hereof, if applicable.
(c) Except as described below, in the event that either
(a) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 120th day following the Closing
Date, (b) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the
Closing Date or (c) the Exchange Offer is not consummated or a
Shelf Registration Statement with respect to the Registrable
Securities is not declared effective on or prior to the 210th day
following the Closing Date, interest will accrue (in addition to
the stated interest on the Registrable Securities) from and
including the next day following each of (i) such 120-day period
in the case of clause (a) above, (ii) such 180-day period in the
case of clause (b) above, and (iii) such 210-day period in the
case of clause (c) above. In each case such additional interest
(the "Special Payment") will be payable in cash semiannually in
arrears on each January 15 and July 15, (each an "Interest
Payment Date"), at a rate per annum equal to 0.25% of the
principal amount or liquidation amount, as applicable, of the
Registrable Securities. The aggregate amount of Special Payment
payable pursuant to the above provisions will in no event exceed
0.25% per annum of the principal amount or the liquidation
amount, as applicable, of the Registrable Securities.
(d) If a Shelf Registration Event shall exist on or
before the 120th day following the Closing Date, then clauses (a)
and (i) of the preceding paragraph shall not
apply. To the extent that such a Shelf Registration Event exists
and the Company has filed a Shelf Registration Statement covering
resales of the Registrable Securities by the 180th day following
the Closing Date, then clauses (b) and (ii) of the preceding
paragraph shall not apply, and to the extent a Shelf Registration
Event exists on the 210th day following the Closing Date, the
period specified in clauses (c) and (iii) of the preceding
paragraph will be 240 days. Upon (x) the filing of the Exchange
Offer Registration Statement or the occurrence of a Shelf
Registration Event, if applicable, as described above, after the
120-day period described in clause (a) of the preceding
paragraph, (y) the effectiveness of the Exchange Offer
Registration Statement (if applicable) (or the filing of a Shelf
Registration Statement, in the event of a Shelf Registration
Event, if applicable, as described above) after the 180-day
period described in clause (b) of the preceding paragraph or (z)
the consummation of the Exchange Offer or the effectiveness of a
Shelf Registration Statement after the 210-day period described
in clause (c) of the preceding paragraph (or the effectiveness of
a Shelf Registration Statement after the 240-day period specified
above, in the event of a Shelf Registration Event, if applicable,
as described above), the Special Payment payable on the
Registrable Securities from the date of such filing,
effectiveness or consummation, as the case may be, will cease to
accrue and all accrued and unpaid Special Payments as of the
occurrence of (x), (y) or (z) shall be paid to the holders of the
Registrable Securities on the next interest payment date.
(e) In the event that a Shelf Registration Statement is
declared effective hereunder, if the Company or the Trust fails
to keep such Shelf Registration Statement continuously effective
for the period required hereby, then from the next day following
such time as the Shelf Registration Statement is no longer
effective until the earlier of (i) the date that the Shelf
Registration Statement is again deemed effective, (ii) the date
that is the third anniversary of the date of the original
issuance of the Registrable Securities or (iii) the date as of
which all of the Registrable Securities covered by the Shelf
Registration Statement are sold pursuant thereto or may sold
without registration pursuant to Rule 144 under the Securities
Act, Special Payments shall accrue at a rate per annum equal to
0.25% of the principal amount or liquidation amount, as
applicable, of the Registrable Securities and shall be payable in
cash, semiannually in arrears on each Interest Payment Date; it
being understood that after the Registered Exchange Offer has
been consummated, no Special Payments shall accrue in respect of
Registrable Securities, without prejudice to any other claim that
any Holder may have for any failure by the Company to obtain or
maintain continuous effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement in
accordance with the terms of this Agreement.
4. Registration Procedures. In connection with any
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Shelf Registration Statement and, to the extent applicable, any
Exchange Offer Registration Statement, the following provisions
shall apply:
(a) The Company and the Trust shall furnish to the
Initial Purchasers, prior to the filing thereof with the
Commission, a copy of any Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to
the Prospectus included therein and shall use their best efforts
to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably
may propose.
(b) The Company and the Trust shall ensure that (i) any
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement
thereto (and each document incorporated therein by reference)
complies in all material respects with the Act and the Exchange
Act and the respective rules and regulations thereunder, (ii) any
Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any
Registration Statement, and any amendment or supplement to such
Prospectus, does not as of the date thereof include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) (1) The Company and the Trust shall advise the
Initial Purchasers and, in the case of a Shelf Registration
Statement, the Holders of securities covered thereby, and, if
requested by the Initial Purchasers or any such Holder, confirm
such advice in writing:
(i) when the Registration Statement and any
amendment thereto has been filed with the Commission
and when the Registration Statement or any post-
effective amendment thereto has become effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement
or the Prospectus included therein or for additional
information.
(2) The Company and the Trust shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement,
the Holders of securities covered thereby, and, in the case of an
Exchange Offer Registration Statement, any Exchanging Dealer that
has provided in writing to the Company a telephone or facsimile
number and address for notices, and, if
requested by the Initial Purchasers or any such Holder or
Exchanging Dealer, confirm such advice in writing of:
(i) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) the receipt by the Company or the Trust of
any notification with respect to the suspension of the
qualification of the securities included therein for
sale in any jurisdiction or the initiation or overtly
threatening of any proceeding for such purpose;
(iii) the happening of any event that requires the
making of any changes in the Registration Statement or
the Prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a
material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice
shall be accompanied by an instruction to suspend the
use of the Prospectus until the requisite changes have
been made); and
(iv) the Company's or the Trust's determination
that a post-effective amendment to a Registration
Statement would be appropriate.
(d) The Company and the Trust shall use their best
efforts to prevent the issuance, and if issued to obtain the
withdrawal, of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) On or prior to the time that an Exchange Offer
Registration Statement or Shelf Registration Statement is first
effective under the Securities Act, the Company shall use its
reasonable best efforts to cause the Capital Securities or
Exchange Securities corresponding to such Capital Securities,
respectively, to be duly authorized for listing, subject in the
case of an Exchange Offer Registration Statement to official
notice of issuance, on the New York Stock Exchange as a fixed
income security (or, if such listing is unavailable, as an equity
security) and thereafter shall use its reasonable best efforts to
maintain such listing; or, in the alternative, the Company shall
have taken such action satisfactory to the Initial Purchasers as
to have caused the Capital Securities or Exchange Securities
corresponding to such Capital Securities, respectively, to be
freely tradable to the
same extent as if duly authorized for listing on the New York
Stock Exchange as described above.
(f) The Company and the Trust shall furnish to each
Holder of securities included within the coverage of any Shelf
Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if
the Holder so requests in writing, all exhibits filed therewith
(including those incorporated by reference).
(g) The Company and the Trust shall, during the Shelf
Registration Period, deliver to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company and the Trust each
consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities
in connection with the offering and sale of the securities
covered by the Prospectus or any amendment or supplement thereto.
(h) The Company and the Trust shall furnish to each
Exchanging Dealer that so requests, without charge, at least one
copy of the Exchange Offer Registration Statement and any post-
effective amendment thereto, including financial statements and
schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits
filed therewith (including those incorporated by reference).
(i) The Company and the Trust shall, during the
Exchange Offer Registration Period, promptly deliver to each
Exchanging Dealer, without charge, as many copies of the final
Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer
may reasonably request for delivery by such Exchanging Dealer in
connection with a sale of Exchange Securities received by it
pursuant to the Registered Exchange Offer; and the Company and
the Trust each consent, subject to the provisions hereof, to the
use of the Prospectus or any amendment or supplement thereto by
any such Exchanging Dealer, as aforesaid.
(j) Prior to the Registered Exchange Offer or any other
offering of securities pursuant to any Registration Statement,
the Company and the Trust shall register or qualify or cooperate
with the Holders of securities included therein and their
respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such
Holders reasonably request in writing and do any and all other
acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that in no event shall
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the Company or the Trust be required to qualify to do business in
any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so
subject.
(k) The Company and the Trust shall cooperate with the
Holders of Registrable Securities or Exchange Securities, as the
case may be, to facilitate the timely preparation and delivery
within the times required by normal-way settlement of
certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in
such denominations and registered in such names as Holders may
request prior to sales of securities pursuant to such
Registration Statement.
(l) If (a) Shelf Registration is filed pursuant to
Section 3 hereof, or (b) a Prospectus contained in the Exchange
Offer Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Act by any Exchanging
Dealer who seeks to sell Registrable Securities or Exchange
Securities during the Shelf Offer Registration Period or the
Exchange Offer Registration Period, as the case may be, upon the
occurrence of any event contemplated by paragraph 4(c)(2)(iii) or
4(c)(2)(iv) hereof, the Company and the Trust as promptly as
practicable, prepare and file with the Commission, at the sole
expense of the Company, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the
purchasers of the Exchange Securities to whom such Prospectus
will be delivered by an Exchanging Dealer, any such Prospectus
will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company shall not be required
to amend or supplement a Registration Statement, any related
prospectus or any document incorporated therein by reference in
the event that, and for a period not to exceed 90 days (or an
aggregate of 120 days in any 18-month period) if (x) an event
occurs and is continuing as a result of which a Registration
Statement, any related prospectus or any document incorporated
therein by reference as then amended or supplemented would, in
the Company's good faith judgment, contain an untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (y)
the disclosure relates to a material pending financing,
acquisition, divestiture or corporate reorganization transaction
involving the Company or any of its subsidiaries which has not
yet been publicly disclosed and the
Company determines in good faith that the disclosure of such
event at such time would have a material adverse effect on the
business, operations or prospects of the Company.
(m) Not later than the effective date of any such
Registration Statement hereunder, the Company and the Trust shall
provide a CUSIP number for the Capital Securities or the Exchange
Securities corresponding to the Capital Securities, as the case
may be, registered under such Registration Statement. In the
event of and at the time of any distribution of the Subordinated
Debt Securities to Holders, the Company and the Trust shall
provide a CUSIP number for the Subordinated Debt Securities or
the Exchange Securities corresponding to the Subordinated Debt
Securities and provide the applicable trustee with certificates
for such securities, in a form eligible for deposit with DTC.
The Company and the Trust shall use their reasonable best efforts
to cause the CUSIP Service Bureau to issue the same CUSIP number
for all Exchange Securities or Registrable Securities, as the
case may be, delivered pursuant to a Registration Statement as
was originally issued for the Registrable Securities.
(n) The Company and the Trust shall use their best
efforts to comply with all applicable rules and regulations of
the Commission to the extent and so long as they are applicable
to the Registered Exchange Offer, the Exchange Offer Registration
Statement or the Shelf Registration and shall make generally
available to their security holders as soon as practicable after
the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of
the Act.
(o) The Company and the Trust shall cause the indenture
relating to the Subordinated Debt Securities, the Capital
Securities Guarantee and the declaration of trust of the Trust
pursuant to which the terms of the Capital Securities are
established, or any corresponding documents in respect of the
Exchange Securities, as the case may be, to be qualified under
the Trust Indenture Act in a timely manner.
(p) The Company and the Trust may require each Holder
of securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Trust such
information regarding the Holder and the distribution of such
securities as the Company and the Trust may from time to time
reasonably require for inclusion in such Registration Statement.
The Company and the Trust may require each such Holder to provide
to the Company and the Trust an undertaking confirming the
Holder's obligations to the Company and the Trust pursuant to
this Section 4(p) and Section 6(b) hereof and the Holder's
obligations to the Company and the Trust referred to in Annex D
hereto.
(q) In the case of any Shelf Registration Statement,
the Company and the Trust shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form (including, without limitation, indemnification
provisions)) and take all other appropriate actions, if any, in
order to facilitate the registration or the disposition of the
Registrable Securities or the Exchange Securities, as the case
may be, to be registered thereunder.
(r) In the case of any underwritten offering under a
Shelf Registration Statement or at the request of an Initial
Purchaser to the extent that an Initial Purchaser has Registrable
Securities or Exchange Securities eligible for resale thereunder,
the Company and the Trust shall (i) make reasonably available for
inspection by a representative of the Holders of a majority of
the securities to be registered thereunder, any Initial Purchaser
(if applicable) and any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by any such Holders,
Initial Purchaser or underwriter all relevant financial and other
records, pertinent corporate documents and properties of the
Company, its subsidiaries and the Trust; (ii) cause the Company's
officers, directors and employees and the trustees of the Trust
to supply all relevant information reasonably requested by the
representative of the Holders, the Initial Purchaser (if
applicable) or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided,
--------
however, that the foregoing inspection and information gathering
-------
shall be coordinated on behalf of the parties by one counsel
designated by and on behalf of Holders representing a majority of
the principal or liquidation amount of the Registrable Securities
included therein and reasonably satisfactory to the Company; and
further provided that any information that is designated in
------- --------
writing by the Company and the Trust, in good faith, as
confidential at the time of delivery of such information shall be
kept confidential by the Holders, the Initial Purchaser (if
applicable) or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality; (iii) make
such customary representations and warranties to the Holders of
securities registered thereunder, the Initial Purchaser (if
applicable) and the underwriters, if any, in form, substance and
scope as are customarily made; (iv) obtain opinions of counsel to
the Company and the Trust in customary form and scope addressed
to each selling Holder, Initial Purchaser (if applicable) and the
underwriters, if any; (v) obtain "cold comfort" letters and
updates thereof from the independent certified public accountants
of the Company, addressed to each selling Holder of securities
registered thereunder, the Initial Purchaser (if applicable) and
the underwriters, if any, in customary form and scope; and (vi)
deliver such documents and certificates as may be reasonably
requested by any such Holders, the Initial Purchaser (if
applicable) or the
Managing Underwriters, if any. In any registration in which the
Registrable Securities or Exchange Securities are sold to an
underwriter for reoffering to the public, the investment
banker(s) and manager(s) shall be selected by the Holders of a
majority in aggregate principal amount of the Registrable
Securities or Exchange Securities that will be included in such
sale; provided, however, that if other than an Initial Purchaser,
-------- -------
such investment banker(s) and/or manager(s) shall be reasonably
satisfactory to the Company.
5. Registration Expenses. The Company shall bear all
---------------------
expenses incurred in connection with the performance of its
obligations under Sections 2, 3 and 4 hereof and, in the event of
any Shelf Registration Statement, will reimburse the Holders for
the reasonable fees and disbursements of one firm of counsel
designated by the majority of the Holders of the Registrable
Securities or Exchange Securities, as the case may be, covered by
such Shelf Registration Statement to act as counsel for the
Holders in connection therewith, which counsel shall be
reasonably satisfactory to the Company and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial
Purchasers for the reasonable fees and disbursements of one
counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In connection
--------------------------------
with any Registration Statement, the Company agrees to indemnify
and hold harmless the Trust, each Holder of securities covered
thereby (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(i) hereof,
each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each person who controls any such
Holder within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (including all documents incorporated by
referenced therein) as originally filed or in any amendment
thereof, or in any preliminary prospectus or Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any
reasonable legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company
-------- -------
will not be liable in any case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf
of any such
Holder specifically for inclusion therein; further, provided,
------- --------
that this indemnity agreement with respect to any untrue
statement or omission in any preliminary Prospectus shall not
inure to the benefit of any indemnified party (or to the benefit
of any person controlling such indemnified party) from whom the
person asserting any such loss, expense, liability or claim
purchased the Registrable Securities or Exchangeable Securities,
as the case may be, which is the subject thereof, if the
Prospectus corrected any such alleged untrue statement or
omission and if such indemnified party failed to send or give a
copy of the Prospectus, excluding any documents incorporated by
reference, to such person at or prior to the written confirmation
of the sale of Registrable Securities or Exchange Securities, as
the case may be, so long as the Company has complied with its
obligations to deliver any amended Prospectus as required by
Section 3(l). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute to
Losses (as defined herein) of, as provided in Section 6(d), any
underwriters of Securities registered under a Shelf Registration
Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as
that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if
requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to
any Prospectus delivery as contemplated in Section 4(i) hereof,
each Exchanging Dealer) severally agrees to indemnify and hold
harmless the Company, the Trust, each of their directors,
trustees, administrators, officers and each person who controls
the Company or the Trust within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity
from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion
in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party
under this Section 6 or notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 6,
notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent the indemnifying party did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
-------- -------
indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of one
such separate counsel (in addition to local counsel) designated
by the indemnified parties if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 6 is unavailable to or
insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which such indemnified party may
be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted
in such Losses; provided, however, that in no case shall any
-------- -------
Initial Purchaser or any subsequent Holder of
any Registrable Security or Exchange Security be responsible, in
the aggregate, for any amount in excess of the purchase discount
or commission applicable to such security, or in the case of an
Exchange Security, applicable to the Registrable Security which
was exchangeable into such Exchange Security, as set forth on the
cover page of the Final Offering Memorandum, nor shall any
underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement
which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party,
on the other hand, in connection with the statements or omissions
which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall
be deemed to be equal to the sum of (x) the total net proceeds
from the Initial Placement (before deducting expenses) as set
forth on the cover page of the Final Offering Memorandum and
(y) the total amount of additional interest which the Company was
not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such
Losses. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Offering
Memorandum, and benefits received by any other Holders shall be
deemed to be equal to the value of receiving Registrable
Securities or Exchange Securities, as applicable, registered
under the Act. Benefits received by any underwriter shall be
deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in
such Losses. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who
controls the Company and the Trust within the meaning of either
the Act or the Exchange Act, each officer of the Company or
trustee of the Trust who shall have signed the Registration
Statement and each director of the Company or trustee of the
Trust shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 6 will remain in
full force and effect, regardless of any investigation made by or
on behalf of any Holder or the Company or any of the officers,
directors or controlling persons referred to in Section 6 hereof,
and will survive the sale by a Holder of securities covered by a
Registration Statement.
7. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company and the
Trust have not, as of the date hereof, entered into, nor shall
they, on or after the date hereof, enter into, any agreement with
respect to their securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this
----------------------
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company and the Trust have obtained the written
consent of the Holders of at least a majority in liquidation
amount of the Capital Securities then outstanding (or, after the
consummation of any Exchange Offer in accordance with Section 2
hereof, of Exchange Securities then outstanding); provided that,
--------
with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company shall
obtain the written consent of each such Initial Purchaser against
which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure
from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being
sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be
given by the majority of such affected Holders, determined on
the basis of securities being sold rather than registered under
such Registration Statement.
(c) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail, telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address
given by such Holder to the Company;
(ii) if to the Initial Purchasers, initially at
the respective addresses set forth in the Purchase
Agreement; and
(iii) if to the Company or the Trust, initially at
their addresses set forth in the Purchase Agreement.
All such notices and communications shall be deemed to
have been duly given when received. The Initial Purchasers, the
Company or the Trust by notice to the others may designate
additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure
----------------------
to the benefit of and be binding upon the successors and assigns
of each of the parties, including, without the need for an
express assignment or any consent by the Company and the Trust
thereto, subsequent Holders of Registrable Securities and/or
Exchange Securities. The Company and the Trust hereby agree to
extend the benefits of this Agreement to any Holder of
Registrable Securities and/or Exchange Securities and any such
Holder may specifically enforce the provisions of this Agreement
as if an original party hereto.
(e) Counterparts. This agreement may be executed in
------------
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this agreement are for
--------
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by
-------------
and construed in accordance with the internal laws of the State
of New York applicable to agreements made and to be performed in
said State.
(h) Severability. In the event that any one of more of
------------
the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in
any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the
rights and privileges of the parties shall be enforceable to the
fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the
------------------------------------
consent or approval of Holders of a specified number, or
percentage of principal amount or liquidation amount, as the case
may be, of, Registrable Securities or Exchange Securities is
required hereunder, Registrable Securities or Exchange
Securities, as applicable, held by the Company or its Affiliates
(other than subsequent Holders of Registrable Securities or
Exchange Securities if
such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Registrable Securities or
Exchange Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such
required percentage.
Please confirm your agreement by having your authorized
officer sign a copy of this Registration Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
LEUCADIA NATIONAL CORPORATION
By: /s/ Barbara Lowenthal
----------------------------------
Name: Barbara Lowenthal
Title: Vice President
LEUCADIA CAPITAL TRUST I
By: Leucadia National Corporation,
as Sponsor
By: /s/ Barbara Lowenthal
----------------------------------
Name: Barbara Lowenthal
Title: Vice President
Accepted:
SALOMON BROTHERS INC
By: /s/ Scott Littlejohn
------------------------------
Name: Scott Littlejohn
Title: Vice President
Date: January 21, 1997
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