AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 9, 2004
REGISTRATION NO. 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LEUCADIA NATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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NEW YORK 6331 13-2615557
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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LEUCADIA NATIONAL CORPORATION
315 PARK AVENUE SOUTH
NEW YORK, NEW YORK 10010
(212) 460-1900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOSEPH A. ORLANDO
LEUCADIA NATIONAL CORPORATION
315 PARK AVENUE SOUTH
NEW YORK, NEW YORK 10010
(212) 460-1900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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WITH COPIES TO:
ANDREA BERNSTEIN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
(212) 310-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE CHART
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER NOTE(1) PRICE(1) REGISTRATION FEE
----------------------------------------------------------------------------------------------------------
7% Senior Notes Due 2013. $100,000,000 100% $100,000,000 $12,670.00
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(f) under the Securities Act of 1933.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
PROSPECTUS
LEUCADIA NATIONAL CORPORATION
[LEUCADIA LOGO]
OFFER TO EXCHANGE
ALL OUTSTANDING 7% SENIOR NOTES DUE 2013
FOR AN EQUAL AMOUNT OF 7% SENIOR NOTES
DUE 2013 WHICH HAVE BEEN REGISTERED
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MATERIAL TERMS OF THE EXCHANGE OFFER
Expires at 5:00 p.m., New York City time, on , ,
2004, unless extended.
The only conditions to completing the exchange offer are
that the exchange offer not violate applicable law or
applicable interpretations of the staff of the Securities
and Exchange Commission and no injunction, order or decree
has been issued which would prohibit, prevent or materially
impair our ability to proceed with the exchange offer.
We will exchange all outstanding notes issued on April 2,
2004 that are validly tendered and not validly withdrawn for
an equal principal amount of notes that are registered under
Securities Act.
Tenders of old notes may be withdrawn at any time prior to
the expiration of the exchange offer.
The terms of the registered notes to be issued in the
exchange offer are substantially identical to the old notes,
except for certain transfer restrictions, registration
rights and liquidated damages provisions relating to the old
notes that will not apply to the registered notes.
We will not receive any cash proceeds from the exchange
offer.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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THE DATE OF THIS PROSPECTUS IS , 2004
TABLE OF CONTENTS
PAGE
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Summary..................................................... 1
Where You Can Find More Information......................... 9
Forward-Looking Statements.................................. 9
Incorporation by Reference.................................. 11
The Exchange Offer.......................................... 12
Capitalization.............................................. 19
Selected Financial and Operating Data....................... 20
Description of Certain Indebtedness and Other Obligations... 22
Description of the Registered Notes......................... 23
Federal Income Tax Considerations........................... 32
Plan of Distribution........................................ 33
Legal Matters............................................... 33
Experts..................................................... 33
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Our logo which appears on the front and back cover page of this prospectus
is registered in the United States Patent and Trademark Office.
SUMMARY
The following summary is qualified in its entirety by the more detailed
information included elsewhere in this prospectus. Because this is a summary, it
may not contain all of the information that may be important to you. Before
making an investment decision, you should carefully read this entire prospectus.
Unless otherwise expressly stated herein or the context otherwise requires, all
references in this prospectus to 'Leucadia,' 'we,' 'us,' 'our,' 'our company' or
'the company' refer to Leucadia National Corporation, a New York corporation and
its direct and indirect subsidiaries and all references to 'notes' refer to the
old notes and the registered notes.
THE EXCHANGE OFFER
On April 2, 2004, we issued in a private placement $100 million aggregate
principal amount of our 7% Senior Notes due 2013, which we refer to as the 'old
notes.' We refer to this private placement as the 'original note offering.' We
entered into a registration rights agreement with the initial purchaser of the
old notes in which we agreed to deliver to you this prospectus. You are entitled
to exchange your old notes in the exchange offer for registered notes with
substantially identical terms. Unless you are a broker-dealer or unable to
participate in the exchange offer, we believe that the notes to be issued in the
exchange offer may be resold by you without compliance with the registration and
prospectus delivery requirements of the Securities Act of 1933. You should read
the discussions under the headings 'The Exchange Offer' and 'Description of the
Registered Notes' for further information regarding the registered notes.
OUR COMPANY
We are a diversified holding company engaged in a variety of businesses,
including telecommunications, healthcare services, banking and lending,
manufacturing, real estate activities, winery operations, development of a
copper mine and property and casualty reinsurance. We concentrate on return on
investment and cash flow to build long-term shareholder value, rather than
emphasizing volume or market share. Additionally, we continuously evaluate the
retention and disposition of our existing operations and investigate possible
acquisitions of new businesses in order to maximize shareholder value. In
identifying possible acquisitions, we tend to seek assets and companies that are
troubled or out of favor and, as a result, are selling substantially below the
values we believe to be present.
Our telecommunications operations consist of WilTel Communications Group,
Inc., which operates in two segments, Network and Vyvx. Network owns or leases
and operates a nationwide inter-city fiber-optic network providing Internet,
data, voice and video services. Vyvx transmits audio and video programming over
the network and distributes advertising media in physical and electronic form.
Our healthcare services operations consists of Symphony Health Services,
LLC. Symphony is primarily engaged in the provision of physical, occupational,
speech and respiratory therapy services.
Our banking and lending operations have historically consisted of making
installment loans to niche markets primarily funded by customer banking deposits
insured by the Federal Deposit Insurance Corporation. However, as a result of
increased loss experience and declining profitability, we have ceased
originating all consumer loans. Our banking and lending activities are currently
limited to maximizing the amount collected from our loan portfolio and
liquidating the business in an orderly and cost efficient manner.
Our manufacturing operations manufacture and market lightweight plastic
netting used for a variety of purposes including, among other things, building
and construction, erosion control, agriculture, packaging, carpet padding,
filtration and consumer products.
Our domestic real estate operations include a mixture of commercial
properties, residential land development projects and other unimproved land, all
in various stages of development and all available for sale.
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Our winery operations consist of Pine Ridge Winery in Napa Valley,
California and Archery Summit in the Willamette Valley of Oregon. These wineries
primarily produce and sell wines in the luxury segment of the premium table wine
market.
Our copper mine development operations consist of our 72.5% interest in MK
Gold Company, a publicly traded company listed on the NASD OTC Bulletin Board
(Symbol: MKAU).
Our property and casualty reinsurance business is conducted through our
common stock interest in Olympus Re Holdings, Ltd., a Bermuda reinsurance
company primarily engaged in the property excess, marine and aviation
reinsurance business.
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Our principal executive offices are located at 315 Park Avenue South, New
York, New York 10010. Our telephone number is (212) 460-1900.
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SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
The exchange offer relates to the exchange of up to $100 million aggregate
principal amount of old notes for an equal aggregate principal amount of
registered notes. On April 2, 2004, we issued and sold $100 million aggregate
principal amount of old notes in a private placement.
The form and terms of the registered notes are substantially the same as the
form and terms of the old notes, except that the registered notes have been
registered under the Securities Act of 1933 and will not bear legends
restricting their transfer. We issued the old notes under an indenture which
grants you a number of rights. The registered notes will be issued under that
indenture and you will have the same rights under the indenture as the holders
of the old notes. See 'Description of the Registered Notes.'
Registration Rights Agreement............. You are entitled under the registration rights agreement
to exchange your old notes for registered notes with
substantially identical terms. The exchange offer is
intended to satisfy these rights. After the exchange
offer is complete, except as set forth in the next
paragraph, you will no longer be entitled to any
exchange or registration rights with respect to your old
notes.
The registration rights agreement requires us to file a
registration statement for a continuous offering in
accordance with Rule 415 under the Securities Act for
your benefit if you would not receive freely tradeable
registered notes in the exchange offer or you are
ineligible to participate in the exchange offer and
indicate that you wish to have your old notes registered
under the Securities Act. See 'The Exchange
Offer -- Procedures for Tendering.'
The Exchange Offer........................ We are offering to exchange $1,000 principal amount of
7% Senior Notes due 2013, which have been registered
under the Securities Act, for each $1,000 principal
amount of our unregistered 7% Senior Notes due 2013. In
order to be exchanged, an old note must be properly
tendered and accepted. All old notes that are validly
tendered and not validly withdrawn will be exchanged.
As of this date, there are $100 million aggregate
principal amount of old notes outstanding.
We will issue the registered notes promptly after the
expiration of the exchange offer.
Resales of the Registered Notes........... We believe that registered notes to be issued in the
exchange offer may be offered for resale, resold and
otherwise transferred by you without compliance with the
registration and prospectus delivery provisions of the
Securities Act if you meet the following conditions:
(1) the registered notes are acquired by you in the
ordinary course of your business;
(2) you are not engaging in and do not intend to engage
in a distribution of the registered notes;
(3) you do not have an arrangement or understanding with
any person to participate in the distribution of the
registered notes; and
(4) you are not an affiliate of ours, as that term is
defined in Rule 405 under the Securities Act.
Our belief is based on interpretations by the staff of
the Commission, as set forth on no-action letters issued
to third
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parties unrelated to us. The staff has not considered
this exchange offer in the context of a no-action
letter, and we cannot assure you that the staff would
make a similar determination with respect to this
exchange offer.
If you do not meet the above conditions, you may incur
liability under the Securities Act if you transfer any
registered note without delivering a prospectus meeting
the requirements of the Securities Act. We do not assume
or indemnify you against that liability.
Each broker-dealer that is issued registered notes in
the exchange offer for its own account in exchange for
old notes which were acquired by that broker-dealer as a
result of market-making activities or other trading
activities must agree to deliver a prospectus meeting
the requirements of the Securities Act in connection
with any resales of the registered notes. A broker-
dealer may use this prospectus for an offer to resell or
to otherwise transfer these registered notes.
Expiration Date........................... The exchange offer will expire at 5:00 p.m., New York
City time, on , , 2004, unless we decide to
extend the exchange offer. We do not intend to extend
the exchange offer, although we reserve the right to do
so. If we determine to extend the exchange offer, we do
not intend to extend it beyond , , 2004.
Conditions to the Exchange Offer.......... The only conditions to completing the exchange offer are
that the exchange offer not violate applicable law or
any applicable interpretation of the staff of the
Commission and no injunction, order or decree has been
issued which would prohibit, prevent or materially
impair our ability to proceed with the exchange offer.
See 'The Exchange Offer -- Conditions.'
Procedures for Tendering Old Notes Held in
the Form of Book-Entry Interests........ The old notes were issued as global securities in fully
registered form without coupons. Beneficial interests in
the old notes which are held by direct or indirect
participants in The Depository Trust Company are shown
on, and transfers of the notes can be made only through,
records maintained in book-entry form by DTC with
respect to its participants.
If you are a holder of an old note held in the form of a
book-entry interest and you wish to tender your old note
for exchange pursuant to the exchange offer, you must
transmit to JPMorgan Chase Bank, as exchange agent, on
or prior to the expiration of the exchange offer either:
a written or facsimile copy of a properly completed and
executed letter of transmittal and all other required
documents to the address set forth on the cover page of
the letter of transmittal; or
a computer-generated message transmitted by means of
DTC's Automated Tender Offer Program system and forming
a part of a confirmation of book-entry transfer in
which you acknowledge and agree to be bound by the
terms of the letter of transmittal.
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The exchange agent must also receive on or prior to the
expiration of the exchange offer either:
a timely confirmation of book-entry transfer of your old
notes into the exchange agent's account at DTC, in
accordance with the procedure for book-entry transfers
described in this prospectus under the heading 'The
Exchange Offer -- Book-Entry Transfer;' or
the documents necessary for compliance with the
guaranteed delivery procedures described below.
A letter of transmittal accompanies this prospectus. By
executing the letter of transmittal or delivering a
computer-generated message through DTC's Automated
Tender Offer Program system, you will represent to us
that, among other things:
the registered notes to be acquired by you in the
exchange offer are being acquired in the ordinary course
of your business;
you are not engaging in and do not intend to engage in a
distribution of the registered notes;
you do not have an arrangement or understanding with any
person to participate in the distribution of the
registered notes; and
you are not our affiliate.
Procedures for Tendering Certificated Old
Notes................................... If you are a holder of book-entry interests in the old
notes, you are entitled to receive, in limited
circumstances, in exchange for your book-entry
interests, certificated notes which are in equal
principal amounts to your book-entry interests. See
'Description of the Registered Notes -- Form of
Registered Notes.' No certificated notes are issued and
outstanding as of the date of this prospectus. If you
acquire certificated old notes prior to the expiration
of the exchange offer, you must tender your certificated
old notes in accordance with the procedures described in
this prospectus under the heading 'The Exchange
Offer -- Procedures for Tendering -- Certificated Old
Notes.'
Special Procedures for Beneficial
Owners.................................. If you are the beneficial owner of old notes and they
are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee, and you
wish to tender your old notes, you should promptly
contact the person in whose name your old notes are
registered and instruct that person to tender on your
behalf. If you wish to tender on your own behalf, you
must, prior to completing and executing the letter of
transmittal and delivering your old notes, either make
appropriate arrangements to register ownership of the
old notes in your name or obtain a properly completed
bond power from the person in whose name your old notes
are registered. The transfer of registered ownership may
take considerable time. See 'The Exchange
Offer -- Procedures for Tendering -- Procedures
Applicable to All Holders.'
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Guaranteed Delivery Procedures............ If you wish to tender your old notes and:
(1) they are not immediately available;
(2) time will not permit your old notes or other
required documents to reach the exchange agent before
the expiration of the exchange offer; or
(3) you cannot complete the procedure for book-entry
transfer on a timely basis,
you may tender your old notes in accordance with the
guaranteed delivery procedures set forth in 'The
Exchange Offer -- Procedures for Tendering -- Guaranteed
Delivery Procedures.'
Acceptance of Old Notes and Delivery of
Registered Notes........................ Except under the circumstances described above under
'Conditions to the Exchange Offer,' we will accept for
exchange any and all old notes which are properly
tendered in the exchange offer prior to 5:00 p.m., New
York City time, on the expiration date. The registered
notes to be issued to you in the exchange offer will be
delivered promptly following the expiration date. See
'The Exchange Offer -- Terms of the Exchange Offer.'
Withdrawal................................ You may withdraw the tender of your old notes at any
time prior to 5:00 p.m., New York City time, on the
expiration date. We will return to you any old notes not
accepted for exchange for any reason without expense to
you as promptly as we can after the expiration or
termination of the exchange offer.
Exchange Agent............................ JPMorgan Chase Bank is serving as the exchange agent in
connection with the exchange offer.
Consequences of Failure to Exchange....... If you do not participate in the exchange offer, upon
completion of the exchange offer, the liquidity of the
market for your old notes could be adversely affected.
See 'The Exchange Offer -- Consequences of Failure to
Exchange.'
Federal Income Tax Consequences........... The exchange of old notes for registered notes will not
be a taxable event for federal income tax purposes. See
'Federal Income Tax Considerations.'
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SUMMARY OF THE TERMS OF THE REGISTERED NOTES
Issuer.................................... Leucadia National Corporation.
Offering.................................. $100,000,000 aggregate principal amount 7% Senior Notes
due 2013.
Maturity Date............................. August 15, 2013.
Interest Rate............................. We will pay interest on the notes at an annual rate of
7%.
Interest Payment Dates.................... We will make interest payments on the notes
semiannually, on each February 15 and August 15,
beginning on August 15, 2004.
Ranking................................... The notes will be our senior unsecured obligations and
will rank equally in right of payment with all of our
existing and future senior unsecured indebtedness and
senior in right to all of our existing and future
subordinated indebtedness. The notes will be effectively
subordinated to all existing and future indebtedness of
our subsidiaries. Had the notes been issued as of
December 31, 2003, they would have been effectively
subordinated to approximately $1.6 billion of
indebtedness and other liabilities of our subsidiaries,
including trade payables but excluding intercompany
obligations.
Optional Redemption....................... The notes are not redeemable at our option prior to
maturity.
Mandatory Redemption...................... The notes are not subject to sinking fund payments.
Change of Control Offer................... If we experience a change of control, each holder of
notes will have the right to sell to us all or a portion
of such holder's notes at 101% of their principal
amount, plus accrued but unpaid interest, if any, to the
date of repurchase. A change of control will occur at
the time Ian M. Cumming, our chairman of the board, and
Joseph S. Steinberg, a director and our president, cease
to beneficially own, in the aggregate, a specified
percentage of our outstanding common shares, coupled in
various circumstances with the notes being rated below
investment grade. See 'Description of the Registered
Notes -- Repurchase at Option of Holders Upon a Change
of Control.'
Restrictive Covenants..................... The indenture governing the notes contains covenants
that, among other things, limit:
our ability to incur additional indebtedness;
our ability to incur liens;
our ability to enter into sale-leaseback transactions;
our ability to enter into transactions with affiliates;
the ability of certain of our subsidiaries to incur
debt; and
our ability to consummate certain mergers.
These covenants are subject to a number of important
exceptions described below in 'Description of the
Registered Notes.'
Registration Rights; Liquidated Damages... In connection with the offering of the old notes, we
agreed to give you the opportunity to exchange the notes
for notes with substantially identical terms but that
may be publicly traded. We have agreed to:
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file a registration statement for the exchange of the
notes within 120 days after the respective issue dates
of the old notes;
cause the registration statement to become effective
within 180 days after the issue date of the old notes;
and
consummate the exchange offer within 45 days after the
registration statement has become effective.
In addition, we have agreed, in some circumstances, to
file a 'shelf registration statement' that would allow
some or all of the notes to be offered to the public. If
we do not comply with the foregoing obligations under
the registration rights agreement, we will be required
to pay liquidated damages to holders of notes.
Use of Proceeds........................... We will not receive any cash proceeds from the exchange
offer.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the SEC's public reference room located at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov. Our common shares, 7 3/4% Senior Notes due 2013, 8 1/4%
Senior Subordinated Notes due 2005 and 7 7/8% Senior Subordinated Notes due 2006
are listed on the New York Stock Exchange. Our reports, proxy statements and
other information can also be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
We have filed with the Commission a Registration Statement on Form S-4 with
respect to the registered notes. This prospectus, which is a part of the
registration statement, omits some of the information included in the
registration statement. Statements made in this prospectus as to the contents of
any contract, agreement or other document are not necessarily complete. With
respect to each contract, agreement or other document, we refer you to the
relevant exhibit for a more complete description of the matter involved, and
each statement is deemed qualified in its entirety to the reference.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in or incorporated by reference in this
prospectus contain forward-looking statements within the meaning of the federal
securities laws. These forward-looking statements are made pursuant to the
safe-harbor provisions of the Private Securities Litigation Reform Act of 1995.
These statements may relate, but are not limited, to projections of revenues,
income or loss, capital expenditures, plans for growth and future operations,
competition and regulation, as well as assumptions relating to the foregoing.
Forward-looking statements are inherently subject to risks and
uncertainties, many of which cannot be predicted or quantified. The words
'estimates,' 'expects,' 'anticipates,' 'believes,' 'plans,' 'intends' and
variations of these words and similar expressions are intended to identify
forward-looking statements that involve risks and uncertainties. Future events
and actual results could differ materially from those set forth in, contemplated
by or underlying the forward-looking statements.
The factors that could cause actual results to differ materially from those
suggested by any of these statements include, but are not limited to, those
discussed or identified from time to time in our public filings, including:
A WORSENING OF GENERAL ECONOMIC AND MARKET CONDITIONS OR INCREASES IN
PREVAILING INTEREST RATE LEVELS, which may result in reduced sales of our
products and services, lower valuations for our associated companies and
investments or a negative impact on the credit quality of our assets;
CHANGES IN FOREIGN AND DOMESTIC LAWS, REGULATIONS AND TAXES, which may
result in higher costs and lower revenue for our businesses, including as
a result of unfavorable political and diplomatic developments, currency
fluctuations, changes in governmental policies, expropriation,
nationalization, confiscation of assets and changes in legislation
relating to non-U.S. ownership;
INCREASED COMPETITION AND CHANGES IN PRICING ENVIRONMENTS, which may
result in decreasing revenues and/or margins, increased raw materials
costs for our plastics business, loss of market share or significant price
erosion;
CONTINUED INSTABILITY AND UNCERTAINTY IN THE TELECOMMUNICATIONS INDUSTRY,
associated with increased competition, aggressive pricing and
overcapacity;
DEPENDENCE ON KEY PERSONNEL, the loss of which would severely affect our
ability to develop and implement our business strategy;
INABILITY TO ATTRACT AND RETAIN HIGHLY SKILLED PERSONNEL, which would make
it difficult to conduct the businesses of certain of our subsidiaries,
including WilTel Communications Group, Inc. and Symphony Health Services
LLC;
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ADVERSE LEGAL AND REGULATORY DEVELOPMENTS THAT MAY AFFECT PARTICULAR
BUSINESSES, such as regulatory developments in the telecommunications and
healthcare industries, or in the environmental area, which could affect
our real estate development activities and telecommunications business, as
well as our other operations;
WEATHER RELATED CONDITIONS AND SIGNIFICANT NATURAL DISASTERS, INCLUDING
HURRICANES, TORNADOES, WINDSTORMS, EARTHQUAKES AND HAILSTORMS, which may
impact our wineries, real estate holdings and reinsurance operations;
THE INABILITY TO REINSURE CERTAIN RISKS ECONOMICALLY, which could result
in us having to self-insure business risks;
CHANGES IN U.S. REAL ESTATE MARKETS, including the residential market in
Southern California and the commercial market in Washington D.C., which
are sensitive to mortgage interest rate levels, and the vacation market in
Hawaii;
ADVERSE ECONOMIC, POLITICAL OR ENVIRONMENTAL DEVELOPMENTS IN SPAIN, which
could delay or preclude the issuance of permits necessary to develop our
copper mineral rights or which could result in increased costs of bringing
the project to completion and increased costs in financing the development
of the project;
DECREASES IN WORLD WIDE COPPER PRICES, which could adversely affect the
commercial viability of our mineral rights in Spain;
WILTEL'S DEPENDENCE ON A SMALL NUMBER OF SUPPLIERS AND HIGH-VOLUME
CUSTOMERS (INCLUDING SBC COMMUNICATIONS INC.), the loss of any of which
could adversely affect WilTel's ability to generate operating profits and
positive cash flows;
CHANGES IN TELECOMMUNICATIONS LAWS AND REGULATIONS, which could adversely
affect WilTel and its customers through, for example, higher costs,
increased competition and a loss of revenue;
WILTEL'S ABILITY TO ADAPT TO TECHNOLOGICAL DEVELOPMENTS OR CONTINUED OR
INCREASED PRICING COMPETITION IN THE TELECOMMUNICATIONS INDUSTRY, which
could adversely affect WilTel's ability to generate operating profits and
positive cash flows;
WILTEL'S INABILITY TO GENERATE OPERATING PROFITS AND POSITIVE CASH FLOWS,
which could result in a default under WilTel's credit agreement, pursuant
to which substantially all of its assets are pledged;
CURRENT AND FUTURE LEGAL AND ADMINISTRATIVE CLAIMS AND PROCEEDINGS AGAINST
WILTEL, which may result in increased costs and diversion of management's
attention;
WILTEL'S ABILITY TO ACQUIRE OR MAINTAIN RIGHTS OF WAY NECESSARY FOR THE
OPERATION OF ITS NETWORK, which could require WilTel to find alternate
routes or increase WilTel's costs to provide services to its customers;
CHANGES IN ECONOMIC CONDITIONS INCLUDING THOSE AFFECTING REAL ESTATE AND
OTHER COLLATERAL VALUES, the continued financial stability of our
borrowers and their ability to make loan principal and interest payments;
REGIONAL OR GENERAL INCREASES IN THE COST OF LIVING, particularly in the
regions in which we have operations or sell our products or services,
which may result in lower sales of such products and service; and
RISKS ASSOCIATED WITH FUTURE ACQUISITIONS AND INVESTMENTS, including
changes in the composition of our assets and liabilities through such
acquisitions, diversion of management's attention from normal daily
operations of the business and insufficient revenues to offset increased
expenses associated with acquisitions.
WE DO NOT HAVE ANY OBLIGATION TO UPDATE PUBLICLY ANY FORWARD-LOOKING
STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE,
EXCEPT AS REQUIRED BY LAW.
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INCORPORATION BY REFERENCE
The Commission allows us to 'incorporate by reference' information that we
file with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus. This prospectus and the information that
we file later with the Commission may update and supersede the information we
incorporate by reference. We incorporate by reference the documents listed below
and any future filings made with the Commission under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 by us until the exchange offer
is complete:
our Annual Report on Form 10-K for the fiscal year ended December 31, 2003,
as amended on Form 10-K/A;
our Current Reports on Form 8-K filed with the Commission on March 15,
2004, March 22, 2004 and March 26, 2004; and
all documents that we file with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until all notes have been
sold.
You may also request a copy of these filings, at no cost, by writing or
telephoning us at the following:
Leucadia National Corporation
315 Park Avenue South
New York, New York 10010
Attention: Corporate Secretary
Telephone: (212) 460-1900
In order to obtain timely delivery, holders must request the information no
later than five business days before the expiration date of the exchange offer.
11
THE EXCHANGE OFFER
PURPOSE AND EFFECT
We issued the old notes on April 2, 2004 in a private placement to a limited
number of qualified institutional buyers and accredited investors, each as
defined under the Securities Act. In connection with this issuance, we entered
into the indenture and the registration rights agreement. These agreements
require that we file a registration statement under the Securities Act with
respect to the registered notes to be issued in the exchange offer and, upon the
effectiveness of the registration statement, offer to you the opportunity to
exchange your old notes for a like principal amount of registered notes. These
registered notes will be issued without a restrictive legend and, except as set
forth below, may be reoffered and resold by you without registration under the
Securities Act. After we complete the exchange offer, our obligations with
respect to the registration of the old notes and the registered notes will
terminate, except as provided in the last paragraph of this section. A copy of
the indenture relating to the notes and the registration rights agreement have
been filed as exhibits to the registration statement of which this prospectus is
a part. As a result of the filing and the effectiveness of the registration
statement, assuming we complete the exchange offer within 45 days of the date
that the registration statement is declared effective, we will not be required
to pay any liquidated damages.
Based on an interpretation by the staff of the Commission set forth in
no-action letters issued to third parties, if you are not our 'affiliate' within
the meaning of Rule 405 under the Securities Act or a broker-dealer referred to
in the next paragraph, we believe that registered notes to be issued to you in
the exchange offer may be offered for resale, resold and otherwise transferred
by you, without compliance with the registration and prospectus delivery
provisions of the Securities Act. This interpretation, however, is based on your
representation to us that:
(1) the registered notes to be issued to you in the exchange
offer are acquired in the ordinary course of your business;
(2) you are not engaging in and do not intend to engage in a
distribution of the registered notes to be issued to you in
the exchange offer; and
(3) you have no arrangement or understanding with any person to
participate in the distribution of the registered notes to
be issued to you in the exchange offer.
If you tender your old notes in the exchange offer for the purpose of
participating in a distribution of the registered notes to be issued to you in
the exchange offer, you cannot rely on this interpretation by the staff of the
Commission. Under those circumstances, you must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale transaction. Each broker-dealer that receives registered notes
in the exchange offer for its own account in exchange for old notes that were
acquired by the broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus meeting
the requirements of the Securities Act in connection with any resales of those
registered notes. See 'Plan of Distribution.'
If you will not receive freely tradeable registered notes in the exchange
offer or are not eligible to participate in the exchange offer, you can elect,
by indicating on the letter of transmittal and providing additional necessary
information, to have your old notes registered in a 'shelf' registration
statement on an appropriate form pursuant to Rule 415 under the Securities Act.
If we are obligated to file a shelf registration statement, we will be required
to keep the shelf registration statement effective for a period of 180 days from
the date the shelf registration statement is declared effective by the
Commission or a shorter period that will terminate when all of the old notes
covered by the shelf registration statement have been sold pursuant to the shelf
registration statement. Other than as set forth in this paragraph, you will not
have the right to require us to register your old notes under the Securities
Act. See ' -- Procedures for Tendering' below.
CONSEQUENCES OF FAILURE TO EXCHANGE
After we complete the exchange offer, if you have not tendered your old
notes, you will not have any further registration rights, except as set forth
above. Your old notes will continue to be subject to
12
restrictions on transfer. Therefore, the liquidity of the market for your old
notes could be adversely affected upon completion of the exchange offer if you
do not participate in the exchange offer.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this prospectus
and in the letter of transmittal, we will accept any and all old notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on the
expiration date. We will issue $1,000 principal amount of registered notes in
exchange for each $1,000 principal amount of old notes accepted in the exchange
offer. You may tender some or all of your old notes pursuant to the exchange
offer. However, old notes may be tendered only in integral multiples of $1,000
principal amount.
The form and terms of the registered notes are substantially the same as the
form and terms of the old notes, except that the registered notes to be issued
in the exchange offer have been registered under the Securities Act and will not
bear legends restricting their transfer. The registered notes will be issued
pursuant to, and entitled to the benefits of, the indenture. The registered
notes issued in connection with this exchange offer and the exchange offers for
the notes issued under the June and August indentures, will be deemed one issue
of notes under the November indenture.
As of the date of this prospectus, $100 million aggregate principal amount
of old notes were outstanding. This prospectus, together with the letter of
transmittal, is being sent to all registered holders and to others believed to
have beneficial interests in the old notes. You do not have any appraisal or
dissenters' rights in connection with the exchange offer under the Business
Corporation Law of the State of New York or the indenture. We intend to conduct
the exchange offer in accordance with the applicable requirements of the
Exchange Act and the rules and regulations of the Commission promulgated under
the Exchange Act.
We will be deemed to have accepted validly tendered outstanding notes when,
as, and if we have given oral or written notice of our acceptance to the
exchange agent. The exchange agent will act as our agent for the tendering
holders for the purpose of receiving the registered notes from us. If we do not
accept any tendered notes because of an invalid tender, the occurrence of other
events set forth in this prospectus or otherwise, we will return certificates
for any unaccepted old notes, without expense, to the tendering holder as
promptly as practicable after the expiration date.
You will not be required to pay brokerage commissions or fees or, except as
set forth below under ' -- Transfer Taxes,' transfer taxes with respect to the
exchange of your old notes in the exchange offer. We will pay all charges and
expenses, other than applicable taxes, in connection with the exchange offer.
See ' -- Fees and Expenses' below.
EXPIRATION DATE; AMENDMENTS
The exchange offer will expire at 5:00 p.m., New York City time, on ,
*, 2004, unless we determine, in our sole discretion, to extend the
exchange offer, in which case, it will expire at the later date and time to
which it is extended. We do not intend to extend the exchange offer, although we
reserve the right to do so. If we determine to extend the exchange offer, we do
not intend to extend it beyond , **, 2004. If we extend the
exchange offer, we will give oral or written notice of the extension to the
exchange agent and give each registered holder notice by means of a press
release or other public announcement of any extension prior to 9:00 a.m., New
York City time, on the next business day after the scheduled expiration date.
We also reserve the right, in our sole discretion,
(1) to delay accepting any old notes or, if any of the
conditions set forth below under ' -- Conditions' have not
been satisfied or waived, to terminate the exchange offer by
giving oral or written notice of the delay or termination to
the exchange agent, or
(2) to amend the terms of the exchange offer in any manner, by
complying with Rule 14e-l(d) under the Exchange Act to the
extent that rule applies.
---------
* This date may not be less than 21 business days from the commencement of the
offer.
** This date may not be more than 45 days from the commencement of the offer.
13
We acknowledge and undertake to comply with the provisions of Rule 14e-l(c)
under the Exchange Act, which requires us to pay the consideration offered, or
return the old notes surrendered for exchange, promptly after the termination or
withdrawal of the exchange offer. We will notify you as promptly as we can of
any extension, termination or amendment.
PROCEDURES FOR TENDERING
Book-Entry Interests
The old notes were issued as global securities in fully registered form
without interest coupons. Beneficial interests in the global securities, held by
direct or indirect participants in DTC, are shown on, and transfers of these
interests are effected only through, records maintained in book-entry form by
DTC with respect to its participants.
If you hold your old notes in the form of book-entry interests and you wish
to tender your old notes for exchange pursuant to the exchange offer, you must
transmit to the exchange agent on or prior to the expiration date either:
(1) a written or facsimile copy of a properly completed and duly
executed letter of transmittal, including all other
documents required by the letter of transmittal, to the
exchange agent at the address set forth on the cover page of
the letter of transmittal; or
(2) a computer-generated message transmitted by means of DTC's
Automated Tender Offer Program system and received by the
exchange agent and forming a part of a confirmation of
book-entry transfer, in which you acknowledge and agree to
be bound by the terms of the letter of transmittal.
In addition, in order to deliver old notes held in the form of book-entry
interests:
(1) a timely confirmation of book-entry transfer of the notes
into the exchange agent's account at DTC pursuant to the
procedure for book-entry transfers described below under
' -- Book-Entry Transfer' must be received by the exchange
agent prior to the expiration date; or
(2) you must comply with the guaranteed delivery procedures
described below.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT YOUR ELECTION AND RISK.
INSTEAD OF DELIVERY BY MAIL, WE RECOMMEND THAT YOU USE AN OVERNIGHT OR HAND
DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE
DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. YOU SHOULD NOT SEND
THE LETTER OF TRANSMITTAL OR OLD NOTES TO US. YOU MAY REQUEST YOUR BROKER,
DEALER, COMMERCIAL BANK, TRUST COMPANY, OR NOMINEE TO EFFECT THE ABOVE
TRANSACTIONS FOR YOU.
Certificated Old Notes
Only registered holders of certificated old notes may tender those notes in
the exchange offer. If your old notes are certificated notes and you wish to
tender those notes for exchange pursuant to the exchange offer, you must
transmit to the exchange agent on or prior to the expiration date, a written or
facsimile copy of a properly completed and duly executed letter of transmittal,
including all other required documents, to the address set forth below under
' -- Exchange Agent.' In addition, in order to validly tender your certificated
old notes:
(1) the certificates representing your old notes must be
received by the exchange agent prior to the expiration date;
or
(2) you must comply with the guaranteed delivery procedures
described below.
PROCEDURES APPLICABLE TO ALL HOLDERS
If you tender an old note and you do not withdraw the tender prior to the
expiration date, you will have made an agreement with us in accordance with the
terms and subject to the conditions set forth in this prospectus and in the
letter of transmittal.
If your old notes are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee and you wish to tender your notes, you
should contact the registered holder promptly and
14
instruct the registered holder to tender on your behalf. If you wish to tender
on your own behalf, you must, prior to completing and executing the letter of
transmittal and delivering your old notes, either make appropriate arrangements
to register ownership of the old notes in your name or obtain a properly
completed bond power from the registered holder. The transfer of registered
ownership may take considerable time.
Signatures on a letter of transmittal or a notice of withdrawal must be
guaranteed by an eligible institution unless:
(1) old notes tendered in the exchange offer are tendered either
(A) by a registered holder who has not completed the box
entitled 'Special Registration Instructions' or 'Special
Delivery Instructions' on the letter of transmittal or
(B) for the account of an eligible institution; and
(2) the box entitled 'Special Registration Instructions' on the
letter of transmittal has not been completed.
If signatures on a letter of transmittal or a notice of withdrawal are
required to be guaranteed, the guarantee must be by a financial institution,
which includes most banks, savings and loan associations and brokerage houses,
that is a participant in the Securities Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Program or the Stock Exchanges Medallion
Program.
If the letter of transmittal is signed by a person other than you, your old
notes must be endorsed or accompanied by a properly completed bond power and
signed by you as your name appears on those old notes.
If the letter of transmittal or any old notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, those
persons should so indicate when signing. Unless we waive this requirement, in
this instance you must submit with the letter of transmittal proper evidence
satisfactory to us of their authority to act on your behalf.
We will determine, in our sole discretion, all questions regarding the
validity, form, eligibility, including time of receipt, acceptance and
withdrawal of tendered old notes. This determination will be final and binding.
We reserve the absolute right to reject any and all old notes not properly
tendered or any old notes our acceptance of which would, in the opinion of our
counsel, be unlawful. We also reserve the right to waive any defects,
irregularities or conditions of tender as to particular old notes. Our
interpretation of the terms and conditions of the exchange offer, including the
instructions in the letter of transmittal, will be final and binding on all
parties.
You must cure any defects or irregularities in connection with tenders of
your old notes within the time period we will determine unless we waive that
defect or irregularity. Although we intend to notify you of defects or
irregularities with respect to your tender of old notes, neither we, the
exchange agent nor any other person will incur any liability for failure to give
this notification. Your tender will not be deemed to have been made and your
notes will be returned to you if:
(1) you improperly tender your old notes;
(2) you have not cured any defects or irregularities in your
tender; and
(3) we have not waived those defects, irregularities or improper
tender.
The exchange agent will return your notes, unless otherwise provided in the
letter of transmittal, as soon as practicable following the expiration of the
exchange offer.
In addition, we reserve the right in our sole discretion to:
(1) purchase or make offers for, or offer registered notes for,
any old notes that remain outstanding subsequent to the
expiration of the exchange offer;
(2) terminate the exchange offer; and
(3) to the extent permitted by applicable law, purchase notes in
the open market, in privately negotiated transactions or
otherwise.
The terms of any of these purchases or offers could differ from the terms of
the exchange offer.
15
By tendering, you will represent to us that, among other things:
(1) the registered notes to be acquired by you in the exchange
offer are being acquired in the ordinary course of your
business;
(2) you are not engaging in and do not intend to engage in a
distribution of the registered notes to be acquired by you
in the exchange offer;
(3) you do not have an arrangement or understanding with any
person to participate in the distribution of the registered
notes to be acquired by you in the exchange offer; and
(4) you are not our 'affiliate,' as defined under Rule 405 of
the Securities Act.
In all cases, issuance of registered notes for old notes that are accepted
for exchange in the exchange offer will be made only after timely receipt by the
exchange agent of certificates for your old notes or a timely book-entry
confirmation of your old notes into the exchange agent's account at DTC, a
properly completed and duly executed letter of transmittal, or a
computer-generated message instead of the letter of transmittal, and all other
required documents. If any tendered old notes are not accepted for any reason
set forth in the terms and conditions of the exchange offer or if old notes are
submitted for a greater principal amount than you desire to exchange, the
unaccepted or non-exchanged old notes, or old notes in substitution therefor,
will be returned without expense to you. In addition, in the case of old notes,
tendered by book-entry transfer into the exchange agent's account at DTC
pursuant to the book-entry transfer procedures described below, the
non-exchanged old notes will be credited to your account maintained with DTC, as
promptly as practicable after the expiration or termination of the exchange
offer.
Guaranteed Delivery Procedures
If you desire to tender your old notes and your old notes are not
immediately available or one of the situations described in the immediately
preceding paragraph occurs, you may tender if:
(1) you tender through an eligible financial institution;
(2) on or prior to 5:00 p.m., New York City time, on the
expiration date, the exchange agent receives from an
eligible institution, a written or facsimile copy of a
properly completed and duly executed letter of transmittal
and notice of guaranteed delivery, substantially in the form
provided by us; and
(3) the certificates for all certificated old notes, in proper
form for transfer, or a book-entry confirmation, and all
other documents required by the letter of transmittal, are
received by the exchange agent within three New York Stock
Exchange trading days after the date of execution of the
notice of guaranteed delivery.
The notice of guaranteed delivery may be sent by facsimile transmission,
mail or hand delivery. The notice of guaranteed delivery must set forth:
(1) your name and address;
(2) the amount of old notes you are tendering; and
(3) a statement that your tender is being made by the notice of
guaranteed delivery and that you guarantee that within three
New York Stock Exchange trading days after the execution of
the notice of guaranteed delivery, the eligible institution
will deliver the following documents to the exchange agent:
(A) the certificates for all certificated old notes being
tendered, in proper form for transfer or a book-entry
confirmation of tender;
(B) a written or facsimile copy of the letter of transmittal, or
a book-entry confirmation instead of the letter of
transmittal; and
(C) any other documents required by the letter of transmittal.
BOOK-ENTRY TRANSFER
The exchange agent will establish an account with respect to the book-entry
interests at DTC for purposes of the exchange offer promptly after the date of
this prospectus. You must deliver your book-entry interest by book-entry
transfer to the account maintained by the exchange agent at DTC. Any
16
financial institution that is a participant in DTC's systems may make book-entry
delivery of book-entry interests by causing DTC to transfer the book-entry
interests into the exchange agent's account at DTC in accordance with DTC's
procedures for transfer.
If one of the following situations occur:
(1) you cannot deliver a book-entry confirmation of book-entry
delivery of your book-entry interests into the exchange
agent's account at DTC; or
(2) you cannot deliver all other documents required by the
letter of transmittal to the exchange agent prior to the
expiration date,
then you must tender your book-entry interests according to the guaranteed
delivery procedures discussed above.
WITHDRAWAL RIGHTS
You may withdraw tenders of your old notes at any time prior to 5:00 p.m.,
New York City time, on the expiration date.
For your withdrawal to be effective, the exchange agent must receive a
written or facsimile transmission notice of withdrawal at its address set forth
below under ' -- Exchange Agent' prior to 5:00 p.m., New York City time, on the
expiration date.
The notice of withdrawal must:
(1) state your name;
(2) identify the specific old notes to be withdrawn, including
the certificate number or numbers and the principal amount
of withdrawn notes;
(3) be signed by you in the same manner as you signed the letter
of transmittal when you tendered your old notes, including
any required signature guarantees or be accompanied by
documents of transfer sufficient for the exchange agent to
register the transfer of the old notes into your name; and
(4) specify the name in which the old notes are to be
registered, if different from yours.
We will determine all questions regarding the validity, form and
eligibility, including time of receipt, of withdrawal notices. Our determination
will be final and binding on all parties. Any old notes withdrawn will be deemed
not to have been validly tendered for exchange for purposes of the exchange
offer. Any old notes which have been tendered for exchange but which are not
exchanged for any reason will be returned to you without cost as soon as
practicable after withdrawal, rejection of tender or termination of the exchange
offer. Properly withdrawn old notes may be retendered by following one of the
procedures described under ' -- Procedures for Tendering' above at any time on
or prior to 5:00 p.m., New York City time, on the expiration date.
CONDITIONS
Notwithstanding any other provision of the exchange offer and subject to our
obligations under the registration rights agreement, we will not be required to
accept for exchange, or to issue registered notes in exchange for, any old notes
and may terminate or amend the exchange offer, if at any time before the
acceptance of any old notes for exchange any of the following events occur:
(1) any injunction, order or decree has been issued by any court
or any governmental agency that would prohibit, prevent or
otherwise materially impair our ability to proceed with the
exchange offer; or
(2) the exchange offer violates any applicable law or any
applicable interpretation of the staff of the Commission.
These conditions are for our sole benefit and we may assert them regardless
of the circumstances giving rise to them, subject to applicable law. We also may
waive in whole or in part at any time and from time to time any particular
condition in our sole discretion. If we waive a condition, we may be required in
order to comply with applicable securities laws, to extend the expiration date
of the exchange offer. Our failure at any time to exercise any of the foregoing
rights will not be deemed a waiver of these
17
rights and these rights will be deemed ongoing rights which may be asserted at
any time and from time to time.
In addition, we will not accept for exchange any old notes tendered, and no
registered notes will be issued in exchange for any of those old notes, if at
the time the notes are tendered any stop order is threatened by the Commission
or in effect with respect to the registration statement of which this prospectus
is a part or the qualification of the indenture under the Trust Indenture Act of
1939.
The exchange offer is not conditioned on any minimum principal amount of old
notes being tendered for exchange.
EXCHANGE AGENT
We have appointed JPMorgan Chase Bank as exchange agent for the exchange
offer. Questions, requests for assistance and requests for additional copies of
the prospectus, the letter of transmittal and other related documents should be
directed to the exchange agent addressed as follows:
By Regular Mail:
JPMorgan Chase Bank
ITS Bond Events
P.O. Box 2320
Dallas, TX 75221
By Registered Mail, Hand or by Overnight Courier:
JPMorgan Chase Bank
ITS Bond Events
2001 Bryan Street, 9th Floor
Dallas, TX 75201
Attention: Frank Ivins
By Facsimile: (214) 468-6494 By Telephone: (800) 275-2048
Attention: Frank Ivins
The exchange agent also acts as trustee under the indenture.
FEES AND EXPENSES
We will not pay brokers, dealers, or others soliciting acceptances of the
exchange offer. The principal solicitation is being made by mail. Additional
solicitations, however, may be made in person or by telephone by our officers
and employees.
We will pay the estimated cash expenses to be incurred in connection with
the exchange offer. These are estimated in the aggregate to be approximately
$25,000 which includes fees and expenses of the exchange agent, accounting,
legal, printing and related fees and expenses.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes in connection with a
tender of your old notes for exchange unless you instruct us to register
registered notes in the name of, or request that old notes not tendered or not
accepted in the exchange offer be returned to, a person other than the
registered tendering holder, in which event the registered tendering holder will
be responsible for the payment of any applicable transfer tax.
ACCOUNTING TREATMENT
We will not recognize any gain or loss for accounting purposes upon the
consummation of the exchange offer. We will amortize the expense of the exchange
offer over the term of the registered notes under accounting principles
generally accepted in the United States of America.
18
CAPITALIZATION
The following table sets forth our unaudited consolidated capitalization as
of December 31, 2003 on an historical basis and on an as adjusted basis to give
effect to the offering of the old notes and the dissolution of Leucadia Capital
Trust I and the distribution of our 8.65% Junior Subordinated Deferrable
Interest Debentures due 2027 to the holders of the Trust's securities in March
2004.
You should read the table below in conjunction with the information set
forth under 'Management's Discussion and Analysis of Financial Condition and
Results of Operations' and our consolidated financial statements and the related
notes included in our Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, as amended on Form 10-K/A, which is incorporated by reference
into this prospectus.
AS OF DECEMBER 31, 2003
------------------------
ACTUAL AS ADJUSTED
------ -----------
(DOLLARS IN THOUSANDS)
Long-term debt (a):
Parent Company Debt:
Senior Notes:
Bank credit facility.................................... $ -- $ --
The notes offered hereby, including debt premium of
$2,191................................................ -- 102,191
7 3/4% Senior Notes due 2013, less debt discount of
$481.................................................. 99,519 99,519
7% Senior Notes due 2013, less debt discount of
$1,016................................................ 273,984 273,984
Subordinated Notes:
8 1/4% Senior Subordinated Notes due 2005............... 19,101 19,101
7 7/8% Senior Subordinated Notes due 2006, less debt
discount of $31....................................... 21,645 21,645
8.65% Junior Subordinated Deferrable Interest Debentures
due 2027 (b).......................................... -- 98,200
Company-obligated mandatorily redeemable preferred
securities of subsidiary trust holding solely
subordinated debt securities of the Company (b)......... 98,200 --
Subsidiary Debt:
WilTel Credit Agreement................................... 375,000 375,000
One Technology Center Notes due 2004 through 2010 with
a weighted average interest rate of 8.1%................ 119,125 119,125
Aircraft financing........................................ 47,675 47,675
Industrial Revenue Bonds (with variable interest)......... 9,815 9,815
Capital leases due 2004 through 2014 with a weighted
average interest rate of 11.7%.......................... 8,481 8,481
Other due 2004 through 2016 with a weighted average
interest rate of 5.2%................................... 106,289 106,289
---------- ----------
Total long-term debt, including current maturities.... 1,178,834 1,281,025
---------- ----------
Shareholders' equity (c):
Common shares, par value $1 per share, authorized
150,000,000 shares; 70,823,502 shares issued and
outstanding, after deducting
49,710,719 shares held in treasury...................... 70,824 70,824
Additional paid-in capital................................ 613,274 613,274
Accumulated other comprehensive income.................... 152,251 152,251
Retained earnings......................................... 1,297,812 1,297,812
---------- ----------
Total shareholders' equity............................ 2,134,161 2,134,161
---------- ----------
Total............................................... $3,312,995 $3,415,186
---------- ----------
---------- ----------
---------
(a) Excludes customer banking deposits ('Deposits') of $145.5
million at December 31, 2003. For information with respect
to the interest rates, priorities and restrictions relating
to outstanding long-term debt, see Note 11 of Notes to
Consolidated Financial Statements contained in our Annual
Report on Form 10-K for the fiscal year ended December 31,
2003.
(b) In January 1997, our wholly-owned subsidiary, Leucadia
Capital Trust I (the 'Trust'), sold $150,000,000 aggregate
liquidation amount of its 8.65% trust issued preferred
securities ('Trups'). These Company-obligated mandatorily
redeemable preferred securities had an effective maturity
date of January 15, 2027 and represented undivided
beneficial interests in the Trust's assets, which consisted
solely of $154,600,000 principal amount of our 8.65% Junior
Subordinated Deferrable Interest Debentures due 2027. During
1998, one of our subsidiaries repurchased $51,800,000
aggregate liquidation amount of the Trups for $42,200,000,
plus accrued interest. In March 2004, we liquidated the
Trust and distributed to the Trups holders the debentures
held by the Trust in exchange for their Trups securities.
(c) For information with respect to stock options and contingent
obligations, see Notes 12 and 17 of Notes to Consolidated
Financial Statements contained in our Annual Report on Form
10-K for the fiscal year ended December 31, 2003.
19
SELECTED FINANCIAL AND OPERATING DATA
The historical financial and operating data below as of and for each of the
years in the five year period ended December 31, 2003 are derived from our
Annual Report on Form 10-K for those years. The financial information below are
qualified in their entirety by reference to, and should be read in conjunction
with the historical financial statements and related notes and management's
discussion and analysis of financial condition and results of operations
contained in our annual and other reports, which are incorporated by reference
herein.
YEAR ENDED DECEMBER 31,
--------------------------------------------------------------
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SELECTED INCOME STATEMENT DATA (a):
Revenues (b)............................................ $ 556,375 $ 241,805 $ 374,161 $ 493,408 $ 460,814
Expenses................................................ 590,404 283,330 301,079 292,105 226,171
Income (loss) from continuing operations before income
taxes, minority expense of trust preferred securities
and equity in income (losses) of associated
companies.............................................. (34,029) (41,525) 73,082 201,303 234,643
Income (loss) from continuing operations before minority
expense of trust preferred securities and equity in
income (losses) of associated companies (c)............ 10,172 103,340 84,423 133,087 195,175
Minority expense of trust preferred securities, net of
taxes.................................................. (2,761) (5,521) (5,521) (5,521) (5,521)
Equity in income (losses) of associated companies, net
of taxes............................................... 76,947 54,712 (15,974) 19,040 (1,906)
Income from continuing operations....................... 84,358 152,531 62,928 146,606 187,748
Income (loss) from discontinued operations, including
gain (loss) on disposal, net of taxes.................. 12,696 9,092 (70,847) (30,598) 27,294
Cumulative effect of a change in accounting principle... -- -- 411 -- --
Net income (loss)................................. 97,054 161,623 (7,508) 116,008 215,042
Ratio of earnings to fixed charges (d):
Excluding interest on Deposits....................... .71x .69x 6.25x 6.99x 7.22x
Including interest on Deposits....................... .75x .81x 3.42x 4.32x 5.66x
Per share:
Basic earnings (loss) per common share:
Income from continuing operations.................... $ 1.38 $ 2.74 $ 1.13 $ 2.64 $ 3.16
Income (loss) from discontinued operations, including
gain (loss) on disposal............................ .20 .16 (1.28) (.55) .46
Cumulative effect of a change in accounting
principle.......................................... -- -- .01 -- --
---------- ---------- ---------- ---------- ----------
Net income (loss)................................. $ 1.58 $ 2.90 $ (.14) $ 2.09 $ 3.62
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
Diluted earnings (loss) per common share:
Income from continuing operations.................... $ 1.37 $ 2.72 $ 1.13 $ 2.64 $ 3.16
Income (loss) from discontinued operations, including
gain (loss) on disposal............................ .20 .16 (1.28) (.55) .46
Cumulative effect of a change in accounting
principle.......................................... -- -- .01 -- --
---------- ---------- ---------- ---------- ----------
Net income (loss)................................. $ 1.57 $ 2.88 $ (.14) $ 2.09 $ 3.62
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
AT DECEMBER 31,
--------------------------------------------------------------
2003 2002 2001 2000 1999
---- ---- ---- ---- ----
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
SELECTED BALANCE SHEET DATA (a):
Cash and investments.................................... $1,602,495 $1,043,471 $1,080,271 $ 998,892 $ 759,089
Total assets............................................ 4,397,164 2,541,778 2,469,087 2,417,783 2,255,239
Debt, including current maturities...................... 1,178,834 233,073 252,279 190,486 268,736
Customer banking deposits............................... 145,532 392,904 476,495 526,172 329,301
Shareholders' equity.................................... 2,134,161 1,534,525 1,195,453 1,204,241 1,121,988
Book value per common share............................. $ 30.13 $ 25.74 $ 21.61 $ 21.78 $ 19.75
Cash dividends per common share......................... $ .25 $ .25 $ .25 $ .25 $ 13.58
---------
(a) WilTel is reflected as a consolidated subsidiary as of
November 6, 2003, the date the Company acquired the balance
of the WilTel shares it did not previously own in exchange
for the issuance of 11,156,460 common shares of the Company.
In 2002, the Company acquired 47.4% of WilTel for
$353,900,000 in cash, including expenses, which was
accounted for by the Company under the equity method of
accounting. The Company's share of WilTel's losses prior to
November 6, 2003 is included in the caption equity in income
(losses) of associated companies ($52,087,000 for 2003 and
$13,374,000 for 2002). For additional information, see
Note 3 of Notes to Consolidated Financial Statements.
(b) Includes net securities gains (losses) of $9,953,000,
$(37,066,000), $28,450,000, $124,964,000 and $16,268,000 for
the years ended December 31, 2003, 2002, 2001, 2000 and
1999, respectively.
(footnotes continued on next page)
20
(footnotes continued from previous page)
(c) As a result of the favorable resolution of various state and
federal income tax contingencies, the income tax provision
reflects a benefit of approximately $24,400,000 for 2003,
$120,000,000 for 2002 and $36,200,000 for 2001.
(d) For purposes of computing these ratios, earnings represent
consolidated pre-tax income (loss) before cumulative effects
of changes in accounting principles and equity in
undistributed earnings or losses of associated companies
accounted for under the equity method of accounting, plus
'fixed charges.' Fixed charges excluding interest on
Deposits include interest expense (other than on Deposits),
the portion of net rental expense representative of the
interest factor and amortization of debt expense. Fixed
charges including interest on Deposits include all interest
expense, the portion of net rental expense representative of
the interest factor and amortization of debt expense. For
the years ended December 31, 2003 and 2002 in which the
ratios indicated a less than one-to-one coverage, the amount
of the deficiencies were approximately $13,300,000 and
$8,300,000, respectively.
21
DESCRIPTION OF CERTAIN INDEBTEDNESS AND OTHER OBLIGATIONS
7% SENIOR NOTES
We currently have outstanding $275 million aggregate principal amount of 7%
senior notes due 2013 issued pursuant to an indenture dated as of November 5,
2003, with JPMorgan Chase as trustee. We will issue the notes offered hereby as
additional notes under the indenture. The terms of the notes offered hereby and
the outstanding 7% senior notes are substantially identical. The 7% senior notes
are our senior unsecured obligations and rank senior in right of payment to all
of our existing and future subordinated indebtedness and pari passu in right of
payment with all of our existing and future senior indebtedness, including the
notes offered hereby.
7 3/4% SENIOR NOTES
We currently have outstanding $100 million aggregate principal amount of
7 3/4% senior notes due 2013. The 7 3/4% senior notes were issued pursuant to an
indenture dated as of August 15, 1993, with U.S. Bank (formerly, Continental
Bank, National Association), as trustee. The 7 3/4% senior notes are our senior
unsecured obligations and rank senior in right of payment to all of our existing
and future subordinated indebtedness and pari passu in right of payment with all
of our existing and future senior indebtedness, including the notes offered
hereby. The terms of the indenture governing the 7 3/4% senior notes are
substantially identical to the terms of the indenture governing the notes
offered hereby.
7 7/8% SENIOR SUBORDINATED NOTES
We currently have outstanding $21.7 million aggregate principal amount of
7 7/8% senior subordinated notes due 2006. The 7 7/8% senior subordinated notes
were issued pursuant to an indenture dated as of October 21, 1996, with Fleet
National Bank, as trustee. The 7 7/8% senior subordinated notes are subordinated
to all of our existing and future senior indebtedness, including the notes
offered hereby and the 7 3/4% senior notes, and rank pari passu with the 8 1/4%
senior subordinated notes. The 7 7/8% senior subordinated notes are not
redeemable by us prior to maturity. Upon a change of control, each noteholder
will have the right, subject to various conditions and restrictions, to require
us to repurchase such holder's 7 7/8% senior subordinated notes at 101% of their
principal amount, plus accrued interest.
8 1/4% SENIOR SUBORDINATED NOTES
We currently have outstanding $19.1 million aggregate principal amount of
8 1/4% senior subordinated notes due 2005. The 8 1/4% senior subordinated notes
were issued pursuant to an indenture dated as of June 13, 1995, with U.S. Bank
(formerly, The First National Bank of Boston), as trustee. The 8 1/4% senior
subordinated notes are subordinated to all of our existing and future senior
indebtedness, including the notes offered hereby and the 7 3/4% senior notes,
and rank pari passu with the 7 7/8% senior subordinated notes. The terms of the
indenture governing the 8 1/4% senior subordinated notes are substantially
identical to the terms of the indenture governing the 7 7/8% senior subordinated
notes.
BANK CREDIT FACILITY
In March 2003, we entered into a $110 million unsecured bank credit facility
which bears interest based on the Eurocurrency Rate or the prime rate and
matures in 2006. As of the date of this prospectus, no amounts were outstanding
under this bank credit facility.
8.65% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE 2027
We currently have outstanding $98.2 million principal amount of 8.65% Junior
Subordinated Deferrable Interest Debentures due 2027. These debentures were
issued pursuant to an indenture dated as of January 21, 1997, with JPMorgan
Chase as trustee. The debentures are subordinated to all of our existing and
future senior indebtedness, including the notes offered hereby, our outstanding
7% senior notes, the 7 3/4% senior notes, the 7 7/8% senior subordinated notes
and the 8 1/4% senior subordinated notes.
22
DESCRIPTION OF THE REGISTERED NOTES
The registered notes are to be issued under an indenture between the Company
and JPMorgan Chase Bank, as trustee, that the Company entered into in connection
with the issuance of the old notes (which we refer to in this section as the
'Indenture'). The terms of the registered notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended.
This description of notes summarizes certain provisions of the Indenture and
the registration rights agreement and makes use of defined terms in the
Indenture and the registration rights agreement. The following summary does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of the Indenture and the registration rights
agreement, and terms made a part of the Indenture by reference to the Trust
Indenture Act. We urge you to read the Indenture, the registration rights
agreement and the Trust Indenture Act because they, and not this description,
define your rights as a holder of notes. Copies of the Indenture and the
registration rights agreement are available from the Company as described under
the heading 'Where You Can Find More Information.'
You can find the definitions of certain terms used in this description of
notes throughout this description of notes. As used in this description of
notes, references to 'we,' 'us' or 'the Company' mean Leucadia National
Corporation (and its successors in accordance with the terms of the Indenture)
and not any of its subsidiaries. The old notes, the registered notes previously
issued under the Indenture and any other notes issued under the Indenture in the
future will be considered collectively to be a single class for all purposes
under the Indenture, including, without limitation, waivers, amendments,
redemptions and offers to purchase, and for purposes of this Description of the
Registered Notes, all references herein to 'notes' shall be deemed to refer
collectively to the old notes, the registered notes previously issued under the
Indenture and any registered notes to be issued pursuant to the exchange offer,
unless the context otherwise requires.
GENERAL
The notes bear interest from February 15, 2004 at the rate of 7% per annum,
payable on February 15 and August 15 in each year to the noteholders of record
at the close of business on the February 1 and August 1 immediately preceding
such interest payment date, commencing August 15, 2004. The notes will be due on
August 15, 2013, will be issued only in denominations of $1,000 and integral
multiples of $1,000, and will be general unsecured obligations of the Company.
The Indenture does not limit the maximum principal amount of notes that the
Company may issue thereunder. There are $375 million aggregate principal amount
outstanding under the Indenture which will comprise a single series of notes.
The Company may issue Additional Notes from time to time, including the
registered notes pursuant to this exchange offer. Any offering of Additional
Notes is subject to the covenant described below under the caption ' -- Certain
Covenants -- Restriction on Incurrence of Indebtedness by the Company and the
Incurrence of Indebtedness and Issuance of Preferred Stock by its Subsidiaries.'
The notes and any Additional Notes subsequently issued under the Indenture will
be treated as a single class for all purposes under the Indenture, including,
without limitation, security interests, waivers, amendments, redemptions and
offers to purchase.
RANKING
The notes are senior unsecured obligations of the Company and rank pari
passu with all other unsecured and unsubordinated indebtedness of the Company
and prior in right of payment to all subordinated indebtedness of the Company.
The notes are effectively subordinated to all existing and future indebtedness
of our subsidiaries. Had the notes been issued as of December 31, 2003, they
would have been effectively subordinated to approximately $1.6 billion of
indebtedness and other liabilities of our subsidiaries, including trade payables
but excluding intercompany obligations.
The notes rank pari passu with the Company's outstanding 7% Senior Notes due
2013 and the Company's 7 3/4% Senior Notes due 2013. The notes rank senior to
the Company's 8 1/4% Senior Subordinated Notes due 2005, the Company's 7 7/8%
Senior Subordinated Notes due 2006 and the Company's 8.65% Junior Subordinated
Deferrable Interest Debentures due 2027.
23
OPTIONAL REDEMPTION
The notes are not redeemable at the option of the Company prior to maturity.
SINKING FUND
The notes are not subject to sinking fund payments.
CERTAIN COVENANTS
The Indenture contains the following covenants:
Restriction on Incurrence of Indebtedness by the Company and on the
Incurrence of Indebtedness and Issuance of Preferred Stock by Its Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to, create, incur,
assume, or guarantee the payment of any Indebtedness, and shall not permit any
of its Subsidiaries to issue any Preferred Stock, if, at the time of such event
and after giving effect thereto on a pro forma basis, the Company's ratio of
Consolidated Debt to Consolidated Tangible Net Worth, as of the most recent date
for which consolidated financial statements are available and adjusted for the
incurrence of all Indebtedness and the issuance of all Preferred Stock by
Subsidiaries (other than Permitted Indebtedness) since that date, would be
greater than 1.75 to 1. This restriction shall not preclude the incurrence of
Permitted Indebtedness.
'Consolidated Debt' means, on any date, the sum of (i) total Indebtedness of
the Company and its Subsidiaries, at such date, determined in accordance with
GAAP on a consolidated basis, and (ii) the aggregate liquidation preference of
all Preferred Stock of Subsidiaries of the Company, at such date, other than
Preferred Stock to the extent held by the Company and its Subsidiaries;
provided, that Consolidated Debt shall not include Permitted Indebtedness.
'GAAP' means United States generally accepted accounting principles as in
effect on December 31, 1992.
'Indebtedness' of any Person means (i) any liability of such Person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a Purchase Money Obligation or deferred payment obligation) given in
connection with the acquisition of any property or assets (other than inventory
or similar property acquired in the ordinary course of business), including
securities, (c) for the payment of a Capitalized Lease Obligation of such Person
or (d) with respect to the reimbursement of any letter of credit, banker's
acceptance or similar credit transaction (other than trade letters of credit
issued in the ordinary course of business; provided, that the failure to make
prompt reimbursement of any trade letter of credit shall be deemed to be the
incurrence of Indebtedness); and (ii) any guarantee by such Person of any
liability of others described in clause (i) above or any obligation of such
Person with respect to any liability of others described in clause (i) above.
Indebtedness shall not include Deposits.
'Permitted Indebtedness' means (i) any Indebtedness of the Company and its
Subsidiaries outstanding on June 5, 2003, or any refinancing or replacement
thereof; provided, that the aggregate amount of such Indebtedness is not
increased, (ii) Acquired Indebtedness, (iii) Preferred Stock of Subsidiaries
held by the Company or its Subsidiaries (it being understood that the sale of
such Preferred Stock by the Company or such Subsidiary to any Person other than
the Company or a Subsidiary of the Company or such Subsidiary no longer being a
Subsidiary shall be deemed the issuance of Preferred Stock for purposes of the
above test) and (iv) intercompany Indebtedness.
'Acquired Indebtedness' means Indebtedness of a Person either (i) existing
at the time such Person becomes a Subsidiary, (ii) assumed in connection with
the acquisition of assets of such Person or (iii) any refinancing or replacement
by such Person of such Indebtedness; provided, that the aggregate amount of such
Indebtedness then outstanding is not increased. Acquired Indebtedness shall not
include (x) any such Indebtedness created in anticipation of such Person
becoming a Subsidiary (other than a refinancing or replacement of Indebtedness
of such Person, which original Indebtedness was not incurred in anticipation of
such Person becoming a Subsidiary), or (y) any Indebtedness that is recourse to
the Company or any Subsidiary or any of their respective assets, other than to
such Person and its Subsidiaries and their respective assets.
24
Limitation on Funded Debt of Material Subsidiaries. Without limiting the
preceding covenant, the Company will not permit any Material Subsidiary to
(a) create, incur, assume or suffer to exist any Funded Debt other than
(i) Funded Debt secured by a Lien on Principal Property which is permitted under
the provision described below under 'Limitations on Liens,' (ii) Funded Debt
owed to the Company or any Subsidiary, (iii) Funded Debt of a corporation which
is merged with or into the Company or a Material Subsidiary, (iv) Funded Debt in
existence on June 5, 2003, (v) Funded Debt created in connection with, or with a
view to, compliance by a Material Subsidiary with the requirements of any
program adopted by any federal, state or local governmental authority and
applicable to such Material Subsidiary and providing financial or tax benefits
to such Material Subsidiary which are not available directly to the Company and
(vi) Funded Debt that is Acquired Indebtedness; or (b) to guarantee, directly or
indirectly through any arrangement that is substantially the equivalent of a
guarantee, the payment of any Funded Debt except for (i) guarantees existing on
June 5, 2003, (ii) guarantees which, on June 5, 2003, a Material Subsidiary is
obligated to give and (iii) guarantees of Funded Debt permitted under
clause (a) of this paragraph. Notwithstanding the foregoing, any Material
Subsidiary may create, incur, assume or guarantee the payment of Funded Debt in
addition to that permitted in this paragraph and extend, renew, substitute or
replace, in whole or in part, such Funded Debt, provided that at the time of
such creation, incurrence, assumption, guarantee, extension, renewal,
substitution or replacement, and after giving effect thereto, the aggregate
principal amount of all Funded Debt of Material Subsidiaries does not exceed 15%
of Consolidated Tangible Net Worth.
The term 'Consolidated Tangible Net Worth' means, as of any date, the total
shareholders' equity of the Company determined in accordance with GAAP less any
and all goodwill and other intangible assets reflected on the consolidated
balance sheet of the Company as of such date. Deferred policy acquisition costs
('DPAC'), that portion of the value of insurance in force resulting from an
acquisition and equivalent to the amount of DPAC of the acquired entity
outstanding immediately prior to such acquisition and deferred taxes shall not
be deemed goodwill or other intangible assets for purposes of determining
Consolidated Tangible Net Worth.
The term 'Funded Debt' means Indebtedness which by its terms matures at, or
can be extended or renewed at the option of the obligor to, a date more than
twelve months after the date of the creation of such Indebtedness, including,
without limitation, outstanding revolving credit loans.
Limitations on Liens. The Company will not, and will not permit any Material
Subsidiary to, (a) issue, assume or guarantee any Indebtedness if such
Indebtedness is secured by a Lien upon, or (b) directly or indirectly secure any
outstanding Indebtedness by a Lien upon, any Principal Property, now owned or
hereafter acquired, without effectively providing that the notes shall be
secured equally and ratably with such Indebtedness, except that the foregoing
restrictions shall not apply to (i) Liens on any Principal Property acquired
after June 5, 2003 to secure or provide for the payment of the purchase price or
acquisition cost thereof, (ii) Liens on Principal Property acquired after
June 5, 2003 existing at the time such Principal Property is acquired,
(iii) Liens on any Principal Property acquired from a corporation merged with or
into the Company or a Material Subsidiary, (iv) Liens in favor of the Company or
any Subsidiary, (v) Liens in existence on any Principal Property on June 5,
2003, (vi) Liens on any Principal Property constituting unimproved real property
constructed or improved after June 5, 2003 to secure or provide for the payment
or cost of such construction or improvement, (vii) Liens in favor of, or
required by, governmental authorities, (viii) pledges or deposits in connection
with workers' compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements or other pledges or deposits in the
ordinary course of the insurance business of a Material Subsidiary of the
Company that is a licensed insurance company, including, without limitation,
those relating to the insurance or reinsurance operations of such Material
Subsidiaries and those relating to the requirements to create 'separate
accounts,' (ix) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, (x) Liens securing any extension, renewal,
substitution or replacement (or successive extensions, renewals, substitutions
or replacements) of Indebtedness of the Company or any Material Subsidiary
outstanding as of March 31, 1993, and (xi) any extension, renewal, substitution
or replacement (or successive extensions, renewals, substitutions or
replacements), in whole or in part, of any Lien referred to in the foregoing
clauses (i) through (x), inclusive.
25
Notwithstanding the foregoing, the Company and any Material Subsidiary may,
without equally and ratably securing the notes, issue, assume or guarantee
secured Indebtedness (which would otherwise be subject to the foregoing Lien
restrictions) in an aggregate amount which, together with all other such secured
Indebtedness of the Company and its Material Subsidiaries (that is, not
including secured Indebtedness of the Company and its Material Subsidiaries
permitted pursuant to the preceding paragraph) and the Attributable Debt in
respect of Sale and Lease-Back Transactions existing at such time (other than
Sale and Lease-Back Transactions permitted in accordance with the first
paragraph under the caption 'Limitation on Sale and Lease-Back Transactions'
below), does not at the time exceed 15% of the shareholders' equity in the
Company and its consolidated Subsidiaries as shown on the audited consolidated
balance sheet contained in the latest annual report to shareholders of the
Company.
'Lien' means any mortgage, lien, pledge, security interest, conditional sale
or other title retention agreement or other security interest or encumbrance of
any kind (including any agreement to give any security interest).
The term 'Material Subsidiary' means (i) any Subsidiary of the Company which
at December 31, 1992 was a 'significant subsidiary' under Regulation S-X
promulgated by the SEC or any successor to such Subsidiary and (ii) any other
Subsidiary of the Company; provided that the Company's investments in and
advances to such Subsidiary at the date of determination thereof, without giving
effect to any write-downs in such investments or advances taken within the prior
12 months, represent 20% or more of the Company's Consolidated Tangible Net
Worth as of such time; provided, however, that this clause (ii) shall not
include any Subsidiary if, at the time that it became a Subsidiary, the Company
contemplated commencing a voluntary case or proceeding under the Bankruptcy Law
with respect to such Subsidiary.
The term 'Principal Property' means all property, assets or revenue of the
Company and each Material Subsidiary now owned or hereafter acquired and all
shares of stock and Indebtedness of any Material Subsidiary now owned or
hereafter acquired.
Limitation on Sale and Lease-Back Transactions. Sale and Lease-Back
Transactions by the Company or any Material Subsidiary are prohibited unless the
proceeds of such sale or transfer are at least equal to the fair value (as
determined by the Board of Directors) of the Principal Property to be leased
pursuant to such Sale and Lease-Back Transaction and either (i) the Company or
such Material Subsidiary could incur a Lien on such Principal Property under the
covenant described in 'Limitation on Liens' above, (ii) such Sale and Lease-Back
Transactions are between or among the Company and any of its Subsidiaries or
between or among Subsidiaries, (iii) the lease is for a period not exceeding
three years and the Company or such Material Subsidiary that is a party to such
lease intends that its use of such Principal Property will be discontinued on or
before the expiration of such period, or (iv) the Company applies, or causes
such Material Subsidiary to apply, an amount equal to the fair value (as
determined by the Board of Directors) of the Principal Property sold pursuant to
such Sale and Lease-Back Transaction to (A) the retirement, within 60 days after
the effective date of any such Sale and Lease-Back Transaction, of Funded Debt
of the Company or of such Material Subsidiary, or (B) the purchase of other
property that will constitute a Principal Property.
Notwithstanding the provisions of the preceding paragraph, the Company or
any Material Subsidiary may enter into any Sale and Lease-Back Transaction which
would otherwise be subject to the following restrictions, if the amount of
Attributable Debt in respect of such Sale and Lease-Back Transaction, together
with all secured Indebtedness of the Company and its Material Subsidiaries
(other than secured Indebtedness of the Company and Material Subsidiaries
permitted under the first paragraph under the caption 'Limitation on Liens'
above) and all other Attributable Debt in respect of Sale and Lease-Back
Transactions existing at such time (other than Sale and Lease-Back Transactions
permitted pursuant to the preceding paragraph), does not at the time exceed 15%
of the shareholders' equity in the Company and its consolidated Subsidiaries as
shown on the audited consolidated balance sheet contained in the latest annual
report to shareholders of the Company.
The term 'Attributable Debt' means, as of any particular time, the present
value, discounted at a rate per annum equal to the interest rate of the notes,
of the rental payments (not including amounts payable by the lessee for
maintenance, property taxes and insurance) due during the remaining term of any
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended).
26
The term 'Sale and Lease-Back Transaction' means the sale or transfer of any
Principal Property owned by the Company or any Material Subsidiary with the
intention of taking back a lease on such property.
Although the Indenture contains the foregoing restrictions on the ability of
the Company and its Subsidiaries to incur Indebtedness, the Company and its
Subsidiaries may engage in transactions that, although in compliance with such
restrictions, would result in additional leverage, which may adversely affect
the noteholders.
REPURCHASE AT OPTION OF HOLDERS UPON A CHANGE OF CONTROL
In the event of any Change of Control, each noteholder shall have the right,
at such noteholder's option, to require the Company to purchase all or any
portion (in integral multiples of $1,000) of such noteholder's notes on the date
(the 'Change of Control Payment Date') which is 20 business days after the date
the Change of Control Notice (as defined below) is mailed (or such later date as
is required by applicable law) at 101% of the principal amount (excluding
premium) thereof, plus accrued interest to the Change of Control Payment Date:
provided that the Company will not be obligated to purchase any of such notes
unless noteholders of at least 10% of the notes outstanding at the Change of
Control Payment Date (other than notes held by the Company and its Affiliates)
shall have tendered their notes for repurchase.
The Company is obligated to send to all noteholders, within five business
days after the occurrence of each Change of Control, a notice of the occurrence
of such Change of Control (the 'Change of Control Notice'), specifying a date by
which a noteholder must notify the Company of such noteholder's intention to
exercise the repurchase right and describing the procedure that such noteholder
must follow to exercise such right. The Company is required to deliver a copy of
such notice to the Trustee and to cause a copy of such notice to be published in
a daily newspaper of national circulation. To exercise the repurchase right, the
noteholder must deliver, on or before the fifth calendar day prior to the Change
of Control Payment Date, written notice (which shall be irrevocable, except as
provided below) to the Company (or an agent designated by the Company for such
purpose) of the noteholder's exercise of such right, together with (i) the note
or notes with respect to which the right is being exercised, duly endorsed for
transfer with the form entitled 'Option of Holder to Elect Purchase' on the
reverse of the note completed, and (ii) if the Change of Control Payment Date
falls between any record date for the payment of interest on the notes and the
next succeeding interest payment date, an amount equal to the interest which the
noteholder is entitled to receive on such interest payment date. The Company
will comply with all applicable Federal and state securities laws, including
Rule 14e-1 of the Exchange Act and other applicable tender offer rules, in
connection with each Change of Control Notice.
A 'Change of Control' shall be deemed to occur if (i) the Company has any
other Indebtedness outstanding (other than Indebtedness under a bank credit
agreement or similar bank financing) which provides for a Change of Control (as
defined in the instrument governing such Indebtedness) if Ian M. Cumming or
Joseph S. Steinberg ceases to beneficially own, in the aggregate, a certain
percentage of the outstanding Common Shares, which percentage ownership
requirement is in excess of 10%, and a Change of Control (as defined in the
instrument governing such Indebtedness) occurs under such Indebtedness or (ii)
at any time when the Company does not have any other Indebtedness outstanding of
the type referred to in clause (i), Ian M. Cumming or Joseph S. Steinberg,
individually or in the aggregate, sells, transfers or otherwise disposes of (a
'Disposition'), after the date hereof, Common Shares so that, after giving
effect thereto, the sole beneficial ownership of outstanding Common Shares by
Mr. Cumming and/or Mr. Steinberg would, in the aggregate, fall below 10% of the
then outstanding Common Shares; provided that no Change of Control shall be
deemed to have occurred under clause (ii) if the notes are rated by both Moody's
and S&P as Investment Grade both at the time of such Disposition and for a
period of 90 days from the date of such Disposition (it being understood that,
with respect to the foregoing proviso, a Change of Control shall be deemed to
occur on the first date during such 90-day period when the notes are no longer
rated as Investment Grade by Moody's and S&P). The term 'Common Shares' shall
include any securities issued as dividends or distributions on the Common
Shares. For purposes hereof, 'sole beneficial ownership' of Common Shares shall
be deemed to include (i) all Common Shares received after June 15, 1992 from Mr.
Cumming or Mr. Steinberg by any member of their respective immediate families
27
or by any trust for the benefit of either of them or any member of their
respective immediate families (a 'Recipient'), which Common Shares remain held
by a Recipient during the lifetime of Mr. Cumming or Mr. Steinberg (unless sold,
transferred or disposed of by such Recipient during the lifetime of Mr. Cumming
or Mr. Steinberg, as the case may be, in which case such Disposition by such
Recipient shall constitute a Disposition by Mr. Cumming or Mr. Steinberg, as the
case may be) and (ii) after the death of Mr. Cumming and/or Mr. Steinberg, all
Common Shares owned as of the date of death by the decedent, and any Recipient
of the decedent, regardless of whether such Recipient continues to own such
Common Shares after the date of death. In determining the number of outstanding
Common Shares then held by Messrs. Cumming and Steinberg and the total number of
outstanding Common Shares, there shall be excluded Common Shares issued by the
Company after December 31, 1991, or the conversion into or exchange for, after
December 31, 1991, Common Shares or securities convertible into or exchangeable
for Common Shares. As calculated pursuant to this provision, Messrs. Cumming and
Steinberg beneficially own, in the aggregate, approximately 43% of the Common
Shares as of December 31, 2003.
As of the date hereof, the Company does not have any Indebtedness
outstanding of the type referred to in clause (i) of the preceding paragraph.
There can be no assurance that the Company will have sufficient funds or the
financing to satisfy its obligations to repurchase the notes and other
Indebtedness that may come due upon a Change of Control. In such case, the
Company's failure to purchase tendered notes would constitute an Event of
Default under the Indenture.
The holders of majority in principal amount of notes then outstanding may
waive compliance by the Company of the repurchase of notes upon a Change of
Control. The Company may not waive such provisions. See 'Modification of the
Indenture.'
The term 'Investment Grade' is defined as BBB- or higher by S&P or Baa3 or
higher by Moody's or the equivalent of such ratings by Moody's or S&P.
TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any Subsidiary to, directly or
indirectly, enter into any transaction or series of related transactions with
any Affiliate (other than with the Company or a Wholly-Owned Subsidiary),
including, without limitation, any loan, advance or investment or any purchase,
sale, lease or exchange of property or the rendering of any service, unless such
transaction or series of transactions is in good faith and at arm's-length and
on terms which are at least as favorable as those available in a comparable
transaction from an unrelated Person. Any such transaction that involves in
excess of $10,000,000 shall be approved by a majority of the Independent
Directors on the Board of Directors of the Company; or, in the event that at the
time of any such transaction or series of related transactions there are no
Independent Directors serving on the Board of Directors of the Company, such
transaction or series of related transactions shall be approved by a nationally
recognized expert with experience in appraising the terms and conditions of the
type of transaction for which approval is required.
SUCCESSOR CORPORATION
The Company may not consolidate with, merge into or transfer all or
substantially all of its assets (i.e., 90% or more) to another corporation
unless (a) the successor corporation shall be existing under the laws of the
United States, any state thereof or the District of Columbia, (b) there shall
not be any Default or Event of Default under the Indenture, (c) such successor
corporation assumes all of the Obligations of the Company under the notes and
the Indenture and (d) after giving effect to such transaction, such successor
corporation shall have a Consolidated Net Worth equal to or greater than the
Company. Thereafter all such obligations of the Company will terminate.
REPORTS TO NOTEHOLDERS
The Company will mail copies of its annual reports and quarterly reports
mailed to its shareholders to noteholders. If the Company is not required to
furnish annual or quarterly reports to its shareholders, the Company will, upon
request, mail to each noteholder, at such noteholder's address as appearing on
the note register, audited annual financial statements prepared in accordance
with United States generally
28
accepted accounting principles and unaudited condensed quarterly financial
statements. Such financial statements shall be accompanied by management's
discussion and analysis of the results of operations and financial condition of
the Company for the period reported upon in substantially the form required
under the rules and regulations of the Commission currently in effect.
THE TRUSTEE
JPMorgan Chase Bank is the Trustee under the Indenture.
The noteholders of a majority in principal amount of all outstanding notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee. The Indenture
will provide that, in case an Event of Default shall occur and be continuing,
the Trustee will be required to use the degree of care of a prudent person in
the conduct of his own affairs in the exercise of its power. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request of any of the noteholders,
unless they shall have offered to the Trustee security and indemnity
satisfactory to it.
EVENTS OF DEFAULT AND NOTICE THEREOF
The term 'Event of Default' when used in the Indenture shall mean any one of
the following: (i) failure to pay interest for 30 days or principal (including
premium, if any); (ii) failure to perform any covenants not described in
clause (i) for 30 days after receipt of notice; (iii) the occurrence of a
default in the payment when due of principal of, or interest on, or other
amounts payable in respect of, any instrument evidencing or securing other
Indebtedness of the Company or any Material Subsidiary of the Company in the
aggregate principal amount of $15,000,000 or more; (iv) the occurrence of any
other event of default under an instrument evidencing or securing other
indebtedness of the Company or any Material Subsidiary of the Company in the
aggregate principal amount of $15,000,000 or more resulting in the acceleration
of such indebtedness, which acceleration is not rescinded or annulled pursuant
to the terms of such instrument; and (v) certain events of bankruptcy,
insolvency or reorganization relating to the Company or any Material Subsidiary
of the Company.
The Indenture will provide that the Trustee shall, within 90 days after the
occurrence of a default, provide to the noteholders notice of all uncured
defaults known to it (the term default to include the events specified above
without grace or notice); provided, that, except in the case of default in the
payment of principal of, premium, if any, or interest on any of the notes, the
Trustee shall be protected in withholding such notice if and so long as a
committee of its Trust Officers in good faith determines that the withholding of
such notice is in the interests of the noteholders.
In case an Event of Default (other than an Event of Default with respect to
the Company specified in clause (v) above) shall have occurred and be
continuing, the Trustee or the holders of at least 25% in aggregate principal
amount of the notes then outstanding, by notice in writing to the Company and to
the Trustee, may declare to be due and payable immediately the outstanding
principal amount and accrued interest, premiums, penalties and other amounts in
respect of the notes and the Indenture. Such declaration may be annulled and
past defaults (except, unless theretofore cured, a default in payment of
principal, premium, if any, or interest on the notes) may be waived by the
holders of a majority in principal amount of the notes, upon the conditions
provided in the Indenture.
If an Event of Default with respect to the Company specified in clause (v)
above occurs, all unpaid principal of, premium, if any, and accrued interest on
the notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
holder of notes.
The Indenture will include a covenant that the Company will file annually
with the Trustee a statement regarding compliance by the Company with the terms
thereof and specifying any defaults of which the signers may have knowledge.
29
MODIFICATION OF THE INDENTURE
Under the Indenture, the rights and obligations of the Company and the
rights of noteholders may be modified by the Company and the Trustee only with
the consent of the noteholders holding a majority in principal amount of the
notes then outstanding; but no extension of the maturity of any notes, or
reduction in the interest rate or premium, if any, or extension of the time of
payment of principal of (including premium, if any) or interest on, or any
change that adversely affects the right of a noteholder to convert any notes, or
any change in the subordination of the notes that is adverse to the noteholders,
or any other modification in the terms of payment of the principal of, or
premium, if any, or interest on the notes or reduction of the percentage
required for modification will be effective against any noteholder without its
consent. The holders of a majority in principal amount of notes then outstanding
may waive compliance by the Company with certain covenants, including those
described under 'Repurchase at Option of Holders Upon a Change of Control.'
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture will be discharged and cancelled upon payment or redemption of
all the notes or upon deposit with the Trustee, within not more than one year
prior to the maturity of the notes, of funds sufficient for such payment or
redemption.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
The Company and the initial purchaser of the old notes entered into a
registration rights agreement pursuant to which the Company agreed, for the
benefit of the holders of the notes, to file under the Securities Act a
registration statement relating to an offer to exchange any and all of the old
notes for a like aggregate principal amount of registered notes which are
substantially identical to the old notes, except that the registered notes have
been registered pursuant to an effective registration statement under the
Securities Act and do not contain provisions for the liquidated damages
described below.
If: (1) prior to the time the exchange offer is completed (A) existing
Commission interpretations are changed such that the registered notes received
in the exchange offer would not in general be, upon receipt, transferable by
holders thereof without restrictions under the Securities Act or (B) the
interests of the holders of the notes, taken as a whole, would be materially
adversely affected by the consummation of the exchange offer; (2) applicable
Commission interpretations would not permit consummation of the exchange offer;
(3) the exchange offer has not been completed within 225 days following the
issue date of the old notes; or (4) the exchange offer is not available to any
holder of the notes, the Company shall, in lieu of (or, in the case of clause
(4), in addition to) conducting the exchange offer, file under the Securities
Act a 'shelf' registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the holders of, all of the Registrable
Securities.
In the event that:
(a) the Company has not filed the registration statement or shelf
registration statement on or before the date on which such registration
statement is required to be filed; or
(b) such registration statement or shelf registration statement has not
become effective or been declared effective by the Commission on or before
the date on which such registration statement is required to become or be
declared effective; or
(c) the exchange offer has not been completed within 45 days after the
initial effective date of the registration statement relating to the
exchange offer (if the exchange offer is then required to be made); or
(d) any shelf registration statement is filed and declared effective but
shall thereafter either be withdrawn by the Company or shall become subject
to an effective stop order suspending the effectiveness of such registration
statement without being succeeded within 30 days by an additional
registration statement filed and declared effective;
then, in addition to the interest on the notes, liquidated damages shall accrue
at an amount per week per $1,000 principal amount of notes equal to $0.05 for
the first 90 days of the registration default period, increasing by an
additional $0.05 per week per $1,000 principal amount of notes with respect to
each
30
subsequent 90-day period, up to a maximum of $0.25 per week per $1,000 principal
amount of notes. Liquidated damages shall be paid on the interest payment dates
to holders of record for the payment of interest.
Holders of notes will be required to make certain representations to the
Company and to deliver information to be used in connection with the shelf
registration statement (in each case, as described in the registration rights
agreement) and will be required to provide comments on the shelf registration
statement within the time periods set forth in the registration rights agreement
in order to have their notes included in the shelf registration statement and
benefit from the provisions regarding liquidated damages set forth above.
Except in certain limited circumstances, the Global Notes may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Notes may
not be exchanged for notes in certificated form, except in certain limited
circumstances. See ' -- Exchange of Interests in Global Notes for Certificated
Notes.'
31
FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal income tax
considerations relating to the exchange of old notes for registered notes in the
exchange offer. It is based upon the provisions of the Internal Revenue Code of
1986, existing and proposed Treasury regulations promulgated thereunder, and
rulings, judicial decisions and administrative interpretations thereunder, as of
the date hereof.
The exchange of your old notes for registered notes in the exchange offer
would not constitute an exchange for federal income tax purposes. Accordingly,
the exchange of your old notes for registered notes would have no U.S. federal
income tax consequences to you. For example, there would be no change in your
tax basis and your holding period would carry over to the registered notes. In
addition, the U.S. federal income tax consequences of holding and disposing of
your registered notes would be the same as those applicable to your old notes.
THE PRECEDING DISCUSSION OF CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
IS FOR GENERAL INFORMATION ONLY AND IS NOT TAX ADVICE. ACCORDINGLY, EACH
INVESTOR SHOULD CONSULT ITS OWN TAX ADVISOR AS TO PARTICULAR TAX CONSEQUENCES TO
IT OF EXCHANGING OLD NOTES FOR REGISTERED NOTES, INCLUDING THE APPLICABILITY AND
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS, AND OF ANY PROPOSED CHANGES IN
APPLICABLE LAWS.
32
PLAN OF DISTRIBUTION
Each broker-dealer that receives registered notes in the exchange offer for
its own account must acknowledge that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the notes.
We reserve the right in our sole discretion to purchase or make offers for, or
to offer registered notes for, any old notes that remain outstanding subsequent
to the expiration of the exchange offer pursuant to this prospectus or otherwise
and, to the extent permitted by applicable law, purchase old notes in the open
market, in privately negotiated transactions or otherwise. This prospectus, as
it may be amended or supplemented from time to time, may be used by all persons
subject to the prospectus delivery requirements of the Securities Act, including
broker-dealers in connection with resales of registered notes received in the
exchange offer, where the notes were acquired as a result of market-making
activities or other trading activities and may be used by us to purchase any
notes outstanding after expiration of the exchange offer. We have agreed that,
for a period of 180 days after the expiration of the exchange offer, we will
make this prospectus, as amended or supplemented, available to any broker-dealer
for use in connection with such a resale.
We will not receive any proceeds from any sale of registered notes by
broker-dealers. Notes received by broker-dealers in the exchange offer for their
own account may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the registered notes or a combination of those methods of resale, at
market prices prevailing at the time of resale, at prices related to the
prevailing market prices or negotiated prices. Such a resale may be made
directly to purchases or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from such a broker-dealer
and/or the purchasers of any of the registered notes. Any broker-dealer that
resells registered notes that were received by it in the exchange offer for its
own account an any broker or dealer that participates in a distribution of the
notes may be deemed to be an 'underwriter' within the meaning of the Securities
Act and any profit on such a resale of the notes and any commissions or
concessions received by those persons may be deemed to be underwriting
compensation under the Securities Act. The letter of transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus meeting the
requirements of the Securities Act, a broker-dealer will not be deemed to admit
that it is an 'underwriter' within the meaning of the Securities Act.
For a period of 180 days after the expiration of the exchange offer, we will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests these documents
in the letter of transmittal. We have agreed to pay all expenses incident to the
exchange offer, including the reasonable fees and expenses of counsel to the
initial purchasers of the old notes, other than commissions or concessions of
any brokers or dealers, and will indemnify holders of the notes, including any
broker-dealers, against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
Weil, Gotshal & Manges LLP has passed upon the validity of the notes on
behalf of the issuer.
EXPERTS
The financial statements of Leucadia National Corporation incorporated by
reference in this prospectus and elsewhere in the registration statement of
which this prospectus is a part to our Annual Report on Form 10-K, as amended,
for the year ended December 31, 2003, except as they relate to WilTel
Communications Group, Inc. for the period from January 1, 2003 through
November 5, 2003, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, and, insofar as they relate
to WilTel Communications Group, Inc., on the report of Ernst & Young LLP,
independent accountants, given on the authority of said firms as experts in
accounting and auditing.
The financial statements of Olympus Re Holdings, Ltd. incorporated by
reference in this prospectus and elsewhere in the registration statement of
which this prospectus is a part to our Form 10-K, as amended, for the year ended
December 31, 2003 have been so incorporated in reliance on the report of
PricewaterhouseCoopers, independent accountants, given on the authority of said
firm as experts in accounting and auditing.
33
The financial statements of Berkadia LLC and The FINOVA Group Inc. appearing
in Leucadia's Annual Report on Form 10-K and Form 10-K/A, respectively, for the
year ended December 31, 2003, have been audited by Ernst & Young LLP,
independent auditors, as stated in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
The financial statements of Jefferies Partners Opportunities Fund II, LLC as
of December 31, 2003 and 2002 and for each of the years in the three year period
ended December 31, 2003, appearing in the December 31, 2003 Annual Report on
Form 10-K of Leucadia, have been audited by KPMG LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are incorporated herein by reference in
reliance upon such report and upon the authority of said firm as experts in
accounting and auditing.
The consolidated financial statements of WilTel as of November 5, 2003 and
December 31, 2002 (Successor Company), and for the periods from January 1, 2003
through November 5, 2003, and November 1, 2002 through December 31, 2002
(Successor Company) and the periods January 1, 2002 through October 31, 2002,
and for the year ended December 31, 2001 (Predecessor Company), have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
The financial statements of EagleRock Capital Partners (QP), LP as of
December 31, 2003 and 2002 and for the year ended December 31, 2003 and for the
period from January 1, 2002 (commencement of operations) to December 31, 2002
and the financial statements of EagleRock Master Fund as of December 31, 2003
and 2002 and for the year ended December 31, 2003 and for the period from
May 1, 2002 (commencement of operations) to December 31, 2002, have been audited
by BDO Seidman, LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such financial statements
are incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
34
________________________________________________________________________________
$100,000,000
LEUCADIA NATIONAL CORPORATION
[LEUCADIA LOGO]
EXCHANGE OFFER FOR
7% SENIOR NOTES DUE 2013
________________________________________________________________________________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant is a New York corporation. Sections 722 through 725 of the
New York Business Corporation Law (the 'Business Corporation Law') provide that
a corporation may indemnify, with certain limitations and exceptions, a director
or officer as follows: (1) in a derivative action, against his reasonable
expenses, including attorneys' fees but excluding certain settlement costs,
actually and necessarily incurred by him in connection with the defense thereof,
or an appeal therein, if such director or officer acted, in good faith, for a
purpose which he reasonably believed to be in (or in the case of service for
another corporation, not opposed to) the best interests of the corporation; and
(2) in a civil or criminal non-derivative action or proceeding including a
derivative action by another corporation, partnership or other enterprise in
which any director or officer of the indemnifying corporation served in any
capacity at the indemnifying corporation's request, against judgments, fines,
settlement payments and reasonable expenses, including attorneys' fees, incurred
as a result thereof, or any appeal therein, if such director or officer acted in
good faith, for a purpose which he reasonably believed to be in (or, in the case
of service for any other corporation, not opposed to) the best interests of the
corporation and, in criminal actions and proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful. Such indemnification
is a matter of right where the director or officer has been successful on the
merits or otherwise, and otherwise may be granted upon corporate authorization
or court award as provided in the statute.
Section 721 of the Business Corporation Law provides that indemnification
arrangements can be established for directors and officers, by contrast, by-law,
charter provision, action of shareholders or board of directors, on terms other
than those specifically provided by Article 7 of the Business Corporation Law,
provided that no indemnification may be made to or on behalf of any director or
officer if a judgment or other final adjudication adverse to the director or
officer establishes that his acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not legally entitled. Article V of the Company's
By-Laws provides for the indemnification, to the full extent authorized by law,
of any person made or threatened to be made a party in any civil or criminal
action or proceeding by reason of the fact that he, his testator or intestate is
or was a director or officer of the Company.
Section 726 of the Business Corporation Law provides that a corporation may
obtain insurance to indemnify itself and its directors and officers. The Company
maintains an insurance policy providing both directors and officers liability
coverage and corporate reimbursement coverage.
Article Sixth of the Company's Certificate of Incorporation contains a
charter provision eliminating or limiting director liability for monetary
damages arising from breaches of fiduciary duty, subject only to certain
limitations imposed by statute.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 -- Indenture, dated as of November 5, 2003 between Registrant and JPMorgan Chase Bank with
respect to Registrant's 7% Senior Notes due 2013 (filed as Exhibit 4.2 to the Registrant's
Registration Statement on Form S-4, File No. 333-107059).*
4.2 -- Registration Rights Agreement, dated as of April 2, 2004, between Registrant and
Jefferies & Company, Inc., with respect to Registrant's 7% Senior Notes due 2013.
4.3 -- Form of 7% Senior Note (included in Exhibit 4.1).
5.1 -- Opinion of Weil, Gotshal & Manges LLP.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
II-1
EXHIBIT
NUMBER DESCRIPTION
------ -----------
23.1 -- Consent of PricewaterhouseCoopers LLP, independent
auditors of the Registrant.
23.2 -- Consent of PricewaterhouseCoopers, independent auditors
of Olympus Re Holdings, Ltd.
23.3 -- Consent of Ernst & Young LLP, independent auditors of
Berkadia LLC.
23.4 -- Consent of Ernst & Young LLP, independent auditors of
WilTel Communications, Inc.
23.5 -- Consent of Ernst & Young LLP, independent auditors of The
FINOVA Group Inc.
23.6 -- Consent of KPMG LLP, independent auditors of Jefferies
Partners Opportunity Fund II, LLC.
23.7 -- Consent of BDO Seidman, LLP, independent auditors of
EagleRock Capital Partners (QP), LP and EagleRock Master
Fund.
23.8 -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 -- Power of Attorney (contained on signature page).
25.1 -- Form T-1 statement of eligibility under the Trust
Indenture Act of 1939 of JPMorgan Chase Bank, as trustee
(filed as Exhibit 25.1 to the Registrant's Registration
Statement on Form S-4, File No. 333-107059).*
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
---------
* Incorporated by reference.
ITEM 22. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by a registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of such
request, and to send the incorporated documents by first class mail or other
equally prompt means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through the date
of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(d) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
II-2
maximum aggregate offering price set forth in the 'Calculation of
Registration Fee' table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Item 8.A. of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided, that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Form F-3.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 7th day of April, 2004.
LEUCADIA NATIONAL CORPORATION
By: /s/ JOSEPH A. ORLANDO
..................................
JOSEPH A. ORLANDO
VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph A. Orlando and Barbara L. Lowenthal, and
each of them, as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) and supplements to this Registration Statement, and
to file the same with the Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been duly signed below by the following persons on
behalf of Leucadia National Corporation and in the capacities and on the dates
indicated.
Name Title Date
---- ----- ----
April 7, 2004
/s/ IAN M. CUMMING Chairman of the Board
......................................... (Principal Executive Officer)
(IAN M. CUMMING)
/s/ JOSEPH S. STEINBERG President and Director April 7, 2004
......................................... (Principal Executive Officer)
(JOSEPH S. STEINBERG)
/s/ JOSEPH A. ORLANDO Vice President and Chief Financial April 7, 2004
......................................... Officer
(JOSEPH A. ORLANDO) (Principal Financial Officer)
/s/ BARBARA L. LOWENTHAL Vice President and Comptroller April 7, 2004
......................................... (Principal Accounting Officer)
(BARBARA L. LOWENTHAL)
/s/ PAUL M. DOUGAN Director April 7, 2004
.........................................
(PAUL M. DOUGAN)
/s/ LAWRENCE D. GLAUBINGER Director April 7, 2004
.........................................
(LAWRENCE D. GLAUBINGER)
/s/ ALAN J. HIRSCHFIELD Director April 7, 2004
.........................................
(ALAN J. HIRSCHFIELD)
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Name Title Date
---- ----- ----
/s/ JAMES E. JORDAN Director April 7, 2004
.........................................
(JAMES E. JORDAN)
/s/ JEFFREY C. KEIL Director April 7, 2004
.........................................
(JEFFREY C. KEIL)
/s/ JESSE CLYDE NICHOLS, III Director April 7, 2004
.........................................
(JESSE CLYDE NICHOLS, III)
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 -- Indenture, dated as of November 5, 2003 between
Registrant and JPMorgan Chase Bank with respect to
Registrant's 7% Senior Notes due 2013 (filed as
Exhibit 4.2 to the Registrant's Registration Statement on
Form S-4, File No. 333-107059).*
4.2 -- Registration Rights Agreement, dated as of April 2, 2004,
between Registrant and Jefferies & Company, Inc., with
respect to Registrant's 7% Senior Notes due 2013.
4.3 -- Form of 7% Senior Note (included in Exhibit 4.1).
5.1 -- Opinion of Weil, Gotshal & Manges LLP.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of PricewaterhouseCoopers LLP, independent
auditors of the Registrant.
23.2 -- Consent of PricewaterhouseCoopers, independent auditors
of Olympus Re Holdings, Ltd.
23.3 -- Consent of Ernst & Young LLP, independent auditors of
Berkadia LLC.
23.4 -- Consent of Ernst & Young LLP, independent auditors of
WilTel Communications, Inc.
23.5 -- Consent of Ernst & Young LLP, independent auditors of The
FINOVA Group Inc.
23.6 -- Consent of KPMG LLP, independent auditors of Jefferies
Partners Opportunity Fund II, LLC.
23.7 -- Consent of BDO Seidman, LLP, independent auditors of
EagleRock Capital Partners (QP), LP and EagleRock Master
Fund.
23.8 -- Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5.1).
24.1 -- Power of Attorney (contained on signature page).
25.1 -- Form T-1 statement of eligibility under the Trust
Indenture Act of 1939 of JPMorgan Chase Bank, as trustee
(filed as Exhibit 25.1 to the Registrant's Registration
Statement on Form S-4, File No. 333-107059).*
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
---------
* Incorporated by reference.
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