AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 17, 2004
REGISTRATION NO. 333-117632
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
LEUCADIA NATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-------------------
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)
-------------------
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)
-------------------
WITH COPIES TO:
ANDREA BERNSTEIN, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
(212) 310-8000
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If only the securities being registered on this Form are being offered
pursuant to dividend or interest revinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------
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.
________________________________________________________________________________
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL SECURITIES, NOR IS IT SOLICITING OFFERS TO BUY THESE SECURITIES, IN ANY
STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION DATED AUGUST 17, 2004
PROSPECTUS
LEUCADIA NATIONAL CORPORATION
[LOGO OF LEUCADIA]
400,000 COMMON SHARES
($1.00 PAR VALUE)
-------------------
This prospectus relates to the public offering of up to 400,000 of our
common shares on behalf of the selling shareholder identified in this
prospectus.
The common shares that may be offered hereby are issuable upon exercise of
warrants to purchase common shares. Each warrant entitles the holder of the
warrant to purchase one common share at an exercise price of $23.95 per share.
The common shares issuable upon exercise of the warrants may be offered and
sold from time to time pursuant to this prospectus by the holder of those common
shares or by its transferees, pledgees, donees, or successors, all of which we
refer to as dealers or agents. The selling shareholder will receive all of the
net proceeds from the sale of the common shares pursuant to this prospectus,
other than the exercise price of the warrants, and will pay all underwriting
discounts and selling commissions, if any, applicable to any sale. We are
responsible for the payment of other expenses incident to the registration of
the common shares. The selling shareholder and any broker-dealers, agents or
underwriters that participate in the distribution of any common shares pursuant
to this prospectus may be deemed to be 'underwriters' within the meaning of
Section 2(11) of the Securities Act. Any discounts, commissions, concessions or
profit they earn on any sale of the common shares may be deemed to be
underwriting compensation under the Securities Act.
Our common shares are quoted on the New York Stock Exchange and the Pacific
Exchange, Inc. under the symbol 'LUK.' On August 16, 2004, the closing price for
our common shares on the New York Stock Exchange was $50.72 per share.
In order to protect our significant tax loss carryforwards and other tax
attributes, our certificate of incorporation contains restrictions on the
transfer of our stock and certain of our securities.
-------------------
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.
-------------------
THE DATE OF THIS PROSPECTUS IS , 2004
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS AND
THOSE DOCUMENTS INCORPORATED BY REFERENCE HEREIN. WE HAVE NOT AUTHORIZED ANYONE
TO PROVIDE YOU WITH DIFFERENT INFORMATION. THE SELLING SHAREHOLDER IS NOT MAKING
AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY
DOCUMENT INCORPORATED BY REFERENCE IS ACCURATE AS OF ANY DATE OTHER THAN THE
DATE ON THE FRONT COVER OF THE APPLICABLE DOCUMENT.
-------------------
TABLE OF CONTENTS
PAGE
----
Forward-Looking Statements.................................. ii
Where You Can Find More Information......................... iii
Summary..................................................... 1
Use of Proceeds............................................. 2
Price of Our Common Shares.................................. 2
Dividend Policy............................................. 2
Description of Our Capital Stock............................ 3
Transfer Restrictions on Our Common Shares.................. 3
Certain Material U.S. Federal Income Tax Consequences to
Non-United States Holders................................. 7
Selling Shareholder......................................... 10
Plan of Distribution........................................ 12
Legal Matters............................................... 13
Incorporation by Reference.................................. 13
Experts..................................................... 14
-------------------
Our logo which appears on the front and back cover page of this prospectus
is registered in the United States Patent and Trademark Office.
i
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, in particular, our Chairman and our
President, the loss of whom 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;
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;
ii
THE INABILITY TO OBTAIN THE NECESSARY FINANCING FOR THE LAS CRUCES COPPER
MINING PROJECT, which could delay or prevent completion 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.
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-3 with
respect to the common shares to be offered and sold by this prospectus. 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.
iii
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.
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. We sold substantially all
of our loan portfolio during the second quarter of 2004 and are liquidating the
remaining 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.
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
Resources Company (formerly MK Gold Company), a publicly traded company listed
on the NASD OTC Bulletin Board (Symbol: MKRR).
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.
RECENT DEVELOPMENTS
On July 8, 2004, we filed a notification and report pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 with the Federal Trade
Commission and the Department of Justice with respect to acquiring 50% or more
of the outstanding common stock of MCI Inc., a telecommunications company
(formerly known as WorldCom Inc.). The waiting period expired on August 9, 2004.
We currently own 15,738,100 shares of MCI common stock, representing
approximately 4.96% of MCI common stock reflected as being outstanding on MCI's
Form 10-Q for the quarter ended June 30, 2004. Our investment in these
securities is approximately $245.9 million. We cannot assure you that we will
acquire control of MCI.
-------------------
Our principal executive offices are located at 315 Park Avenue South, New
York, New York 10010. Our telephone number is (212) 460-1900.
1
USE OF PROCEEDS
In connection with the sale of any common shares offered by this prospectus,
we will receive the exercise price of $23.95 per share upon the exercise of the
related warrants. If all of the warrants pursuant to which we are registering
the common shares were exercised, we would receive an aggregate of $9,580,000
upon exercise of the warrants. The balance of the proceeds from the sale of any
common shares offered hereby will be received by the selling shareholder.
Pursuant to the terms of the warrants, we are obligated to register the common
shares issuable upon exercise of the warrants and to bear the costs of the
registration, other than underwriting discounts and commissions, if any, which
would be paid by the selling shareholder. We estimate that the registration
expenses that we will bear will be approximately $100,000. We will use any net
proceeds that we receive from the offering of any common shares under this
prospectus for general corporate purposes, which may include working capital,
acquisitions or investment opportunities. Accordingly, our management will have
discretion over the use of proceeds we receive from this offering. Pending its
use, proceeds will be invested in short-term investment grade obligations.
PRICE RANGE OF OUR COMMON SHARES
Our common shares are traded on the New York Stock Exchange and the Pacific
Exchange, Inc. under the symbol LUK. The following table sets forth, for the
calendar periods indicated, the high and low price per common share on the
consolidated transaction reporting system, as reported by the Bloomberg
Professional Service provided by Bloomberg L.P.
COMMON SHARE
---------------
HIGH LOW
---- ---
2002
First Quarter........................................... $36.04 $28.00
Second Quarter.......................................... 38.16 30.95
Third Quarter........................................... 36.37 27.62
Fourth Quarter.......................................... 40.27 32.85
2003
First Quarter........................................... $38.60 $32.59
Second Quarter.......................................... 39.44 35.79
Third Quarter........................................... 39.40 36.33
Fourth Quarter.......................................... 46.19 37.78
2004
First Quarter........................................... $53.95 $46.03
Second Quarter.......................................... 56.08 46.05
Third Quarter (through August 16, 2004)................. 51.96 48.35
As of August 16, 2004, the last reported sale price of our common shares on
the NYSE was $50.72.
DIVIDEND POLICY
In 2003 and 2002, we paid cash dividends of $.25 per common share. The
payment of dividends in the future is subject to the discretion of our Board of
Directors and will depend upon general business conditions, legal and
contractual restrictions on the payment of dividends and other factors that the
Board of Directors may deem to be relevant.
In connection with the declaration of dividends or the making of
distributions on, or the purchase, redemption or other acquisition of common
shares, we are required to comply with certain restrictions contained in certain
of our debt instruments. Our regulated subsidiaries are restricted in the amount
of distributions that can be made to us without regulatory approval. For further
information, see Item 7, 'Management's Discussion and Analysis of Financial
Condition and Results of Operations' incorporated by reference in this offering
circular from our Annual Report on Form 10-K for the fiscal year ended
December 31, 2003.
2
DESCRIPTION OF OUR CAPITAL STOCK
AUTHORIZED CAPITAL
As of August 16, 2004, our amended and restated articles of incorporation
provide that we have authority to issue the following capital stock:
150,000,000 common shares, $1.00 par value, of which 70,900,502 shares are
issued and outstanding; and
6,000,000 preferred shares, $1.00 par value, of which no shares are issued
and outstanding.
COMMON SHARES
Subject to the rights of the holders of any preferred shares that may be
outstanding, holders of our common shares are entitled to receive dividends as
may be declared by our board of directors out of funds legally available to pay
dividends, and, in the event of liquidation, dissolution or winding up of our
affairs, to share in any distribution of our assets after payment or providing
for the payment of liabilities and the liquidation preference of any outstanding
preferred shares. Each holder of common shares is entitled to one vote for each
share held of record on the applicable record date for all matters submitted to
a vote of shareholders. Holders of common shares have no cumulative voting
rights or preemptive rights to purchase or subscribe for any stock or other
securities, and there are no conversion rights or redemption, purchase,
retirement or sinking fund provisions with respect to our common shares. Our
common shares are traded on the New York Stock Exchange and the Pacific
Exchange, Inc. under the symbol 'LUK.'
PREFERRED SHARES
We are authorized by our amended and restated certificate of incorporation
to issue up to 6,000,000 shares of preferred stock in one or more series. The
board of directors has the authority, without any vote or action by our
stockholders, to (a) authorize the issuance of preferred stock up to the limit
set by our certificate of incorporation, (b) create new series of preferred
stock and (c) fix the terms of each series, including any rights related to
dividends, voting, conversion, redemption and liquidation preference. The
issuance of preferred stock could adversely affect the voting and other rights
of holders of the common stock and may have the effect of delaying or preventing
a change in control of our company.
THE TRANSFER RESTRICTIONS ON OUR COMMON SHARES
There are certain restrictions on the transferability of our common shares.
For a description of the transfer restrictions, see 'Transfer Restrictions on
our Common Shares' below.
TRANSFER AGENT
American Stock Transfer & Trust Company is the Transfer Agent and Registrar
for our common shares.
TRANSFER RESTRICTIONS ON OUR COMMON SHARES
GENERAL
In order to protect our significant tax loss carryforwards and other tax
attributes, our common shares are subject to certain transfer restrictions
contained in our certificate of incorporation. The transfer restriction imposes
restrictions on the transfer of our common shares (and any other capital stock
that we issue in the future) to designated persons.
TAX LAW LIMITATIONS
The benefit of a company's existing tax loss and credit carryovers, as well
as the benefit of built-in losses, can be reduced or eliminated under Section
382 of the Internal Revenue Code. Section 382 limits the use of losses and other
tax benefits by a company that has undergone an 'ownership change,' as defined
in Section 382 of the Code. Generally, an 'ownership change' occurs if one or
more shareholders, each of whom owns 5% or more in value of a company's capital
stock, increase their aggregate percentage ownership by more than 50 percentage
points over the lowest percentage of stock owned by such shareholders over the
preceding three-year period. For this purpose, all holders who each own less
3
than 5% of a company's capital stock are generally treated together as one 5%
shareholder. In addition, certain attribution rules, which generally attribute
ownership of stock to the ultimate beneficial owner thereof without regard to
ownership by nominees, trusts, corporations, partnerships or other entities, are
applied in determining the level of stock ownership of a particular shareholder.
Options (including warrants and other rights) to acquire capital stock may be
treated as if they had been exercised, on an option-by-option basis, if the
issuance, transfer or structuring of the option meets certain tests. All
percentage determinations are based on the fair market value of a company's
capital stock, including any preferred stock which is voting or convertible (or
otherwise participates in corporate growth).
If an 'ownership change' were to occur in respect of Leucadia or any of its
subsidiaries or subsidiary groups, the amount of taxable income in any year (or
portion of a year) subsequent to the ownership change that could be offset by
net operating losses ('NOLs') or other tax attributes existing (or 'built-in')
prior to such 'ownership change' could not exceed an amount equal to the product
obtained by multiplying (1) the aggregate value of Leucadia, the subsidiary or
the subsidiary group that underwent the 'ownership change' by (2) the federal
long-term tax exempt rate. Because the aggregate value of Leucadia or any of its
subsidiaries, as well as the federal long-term tax-exempt rate, fluctuate, it is
impossible to predict with any accuracy the annual limitation upon the amount of
taxable income that could be offset by such NOLs or other tax attributes (and
'built-in' losses) were an 'ownership change' to occur in the future. However,
if such limitation were to exceed the taxable income against which it otherwise
would be applied for any year following an 'ownership change,' the limitation
for the ensuing year would be increased by the amount of such excess.
DESCRIPTION OF THE TRANSFER RESTRICTION
Our certificate of incorporation generally restricts until December 31, 2024
(or earlier, in certain events) any attempted transfer of our common shares or
any other securities that would be treated as our 'stock' under the applicable
tax regulations (which we refer to herein as 'Leucadia Stock') to a person or
group of persons who own, or who would own as a result of such transfer, 5% or
more of the Leucadia Stock. The transfer restriction also restricts any other
attempted transfer of Leucadia Stock that would result in the identification of
a new '5-percent shareholder' of our company, as determined under applicable tax
regulations. This would include, among other things, an attempted acquisition of
Leucadia Stock from an existing 5-percent shareholder. For these purposes,
numerous rules of attribution, aggregation and calculation prescribed under the
Internal Revenue Code (and related regulations) will be applied in determining
whether the 5% threshold has been met and whether a group exists. The transfer
restriction may also apply to proscribe the creation or transfer of certain
'options,' which are broadly defined, in respect of the Leucadia Stock.
Acquisitions of Leucadia Stock directly from us, whether by way of option
exercise or otherwise, are not subject to the transfer restriction.
Consequently, persons or entities who are able to acquire our common shares
directly from us, including our employees, officers and directors, may do so
without application of the transfer restriction, irrespective of the number of
our common shares they are acquiring. As a result, those persons or entities
dealing directly with us may be seen to receive an advantage over persons or
entitles who are not able to acquire our common shares directly from us and,
therefore, are restricted by the terms of the transfer restriction. It should be
noted, however, that any direct acquisitions of our common shares from us first
requires board approval and in granting such approval, the board will review the
implications of any such issuance for our NOLs and other tax attributes.
Our board of directors has the discretion to approve a transfer of Leucadia
Stock that would otherwise violate the transfer restriction. Nonetheless, if the
board of directors decides to permit a transfer that would otherwise violate the
transfer restriction, that transfer or later transfers may result in an
'ownership change' that would limit the use of the tax attributes of Leucadia.
The board of directors intends to consider any attempted transfer individually
and determine at the time whether it is in the best interest of our company,
after consideration of any factors that the board deems relevant, to permit the
transfer notwithstanding that an 'ownership change' may occur.
The transfer restriction will restrict a shareholder's ability to acquire
additional Leucadia Stock in excess of the specified limitations. Furthermore, a
shareholder's ability to dispose of his Leucadia Stock, or any other Leucadia
Stock which the shareholder may acquire, may be restricted as a result of the
transfer restriction.
4
Generally, the restriction is imposed only with respect to the number of
shares of Leucadia Stock, or options with respect to Leucadia Stock (the 'Excess
Stock'), purportedly transferred in excess of the threshold established in the
transfer restriction. In any event, the restriction does not prevent a valid
transfer if either the transferor or the purported transferee obtains the
approval of our board of directors.
The transfer restriction restricts any person or entity, or group of persons
or entities, from acquiring sufficient Leucadia Stock to cause that person or
entity to become the owner of 5% of the Leucadia Stock, and prohibits the
current 5-percent shareholders, as determined under applicable tax regulations,
from increasing their ownership of Leucadia Stock without obtaining the approval
of our board of directors.
The transfer restriction does not restrict the ability of Ian M. Cumming,
our Chairman of the Board and the beneficial holder of approximately 13.1% of
our outstanding common shares (including shares issuable on exercise of common
share purchase warrants), to exercise his warrants, because the acquisition of
our common shares from us is not within the scope of the transfer restriction.
These issuances of common shares have been excluded from the operation of the
transfer restriction because our board previously determined that the issuance
of our common shares under these circumstances would not adversely affect our
NOL and other tax attributes. In addition, since our board will be able to
consider the effect on our NOLs and other tax attributes of future issuances of
our common shares at the time of the issuance, whether as a result of
transactions with third parties, or the issuance of our common shares in a
private placement or public offering, or as compensation to our employees,
officers or directors, or otherwise, future issuances of our common shares, as
well as grants of options or warrants, by us also have been excluded from the
transfer restriction. The transfer restriction does, however, restrict the
ability of Mr. Cumming and Joseph S. Steinberg, our President and the beneficial
holder of approximately 13.5% of our outstanding shares, to acquire additional
Leucadia Stock from persons other than us.
Our certificate of incorporation further provides that all certificates
representing Leucadia Stock bear the following legend: 'THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS PURSUANT TO PART III OF ARTICLE
FOURTH OF THE CERTIFICATE OF INCORPORATION OF THE CORPORATION REPRINTED IN ITS
ENTIRETY ON THE BACK OF THIS CERTIFICATE.'
In accordance with the transfer restriction, we will not permit any of our
employees or agents, including the transfer agent, to record any transfer of our
common shares purportedly transferred in excess of the threshold established in
the transfer restriction. As a result, requested transfers of Leucadia Stock may
be delayed or refused.
Our certificate of incorporation provides that any transfer attempted in
violation of the restrictions would be void ab initio, even if the transfer has
been recorded by the transfer agent and new certificates issued. The purported
transferee of the Leucadia Stock would not be entitled to any rights of
shareholders with respect to the Excess Stock, including the right to vote the
Excess Stock, or to receive dividends or distributions in liquidation in respect
thereof, if any.
If our board of directors determines that a purported transfer has violated
the transfer restriction, we will require the purported transferee to surrender
the Excess Stock, and any dividends the purported transferee has received on the
Excess Stock, to an agent designated by the board of directors. The agent will
then sell the Excess Stock in one or more arm's-length transactions, executed on
the NYSE, if possible, to a buyer or buyers, which may include us; provided that
nothing will require the agent to sell the Excess Stock within any specific time
frame if, in the agent's discretion, the sale would disrupt the market for the
Leucadia Stock or have an adverse effect on the value of the Leucadia Stock. If
the purported transferee has resold the Excess Stock before receiving our demand
to surrender the Excess Stock, the purported transferee generally will be
required to transfer to the agent the proceeds of the sale and any distributions
the purported transferee has received on the Excess Stock. From such proceeds,
the agent will pay any amounts remaining after repaying its own expenses and
reimbursing the purported transferee for the price paid for the Excess Stock (or
the fair market value of the Excess Stock at the time of the attempted transfer
to the purported transferee by gift, inheritance or similar transfer) to a named
charity or, in certain circumstances, charities selected by the Board of
Directors.
The transfer restriction and related provisions contained in our amended and
restated bylaws may be deemed to have an 'anti-takeover' effect because they
restrict the ability of a person or entity, or group
5
of persons or entities, from accumulating in the aggregate at least 5% of the
Leucadia Stock and the ability of persons, entities or groups now owning at
least 5% of the Leucadia Stock from acquiring additional Leucadia Stock. The
transfer restriction discourages or prohibits accumulations of substantial
blocks of shares for which shareholders might receive a premium above market
value.
Notwithstanding the restrictions, however, there remains a risk that certain
changes in relationships among shareholders or other events will cause a change
of ownership to occur under Section 382 of the Internal Revenue Code. Further,
there can be no assurance, in the event transfers in violation of the transfer
restriction are attempted, that the IRS will not assert that those transfers
have federal income tax significance notwithstanding the transfer restriction.
As a result, the transfer restriction serves to reduce, but not necessarily
eliminate, the risk that Section 382 will cause the limitations described above
on the use of tax attributes of Leucadia.
We have been advised by our counsel, Weil, Gotshal & Manges LLP, that,
absent a court determination, (1) there can be no assurance that the transfer
restriction will be enforceable against all of our shareholders and (2) the
transfer restriction may be subject to challenge on equitable grounds. However,
it should be noted that the existing transfer restriction has been in place
since December 31, 1992 and has not been challenged to date.
The determination of 5% shareholder status is based upon the outstanding
Leucadia Stock, which currently consists of only common shares. Consequently, in
determining the existence of a 5% shareholder, a holder's percentage ownership,
taking into account certain rules of attribution, would be calculated with
reference to outstanding common shares (increased, for such holder, by the
number of common shares deemed to be, but not actually outstanding). Future
changes in the capitalization of Leucadia may affect who will be deemed a 5%
shareholder, thereby affecting the applicability of the transfer restriction to
future transfers of common shares. However, because the transfer restriction
generally applies (with certain exceptions) to a person or group of persons who
owns (including by attribution) at least 5% of all 'stock' of Leucadia, a change
in capitalization that increases the 'stock' of Leucadia likely would result in
a reduction in the number of individuals or groups who would be subject to the
transfer restriction, while a diminution of 'stock' of Leucadia would have the
opposite effect.
Holders are advised to carefully monitor their ownership of common shares
(and any future securities of Leucadia that may constitute 'Leucadia Stock' for
purposes of the transfer restriction) and should consult their own legal
advisors and/or Leucadia to determine whether their ownership approaches the
prohibited level.
6
CERTAIN MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
TO NON-UNITED STATES HOLDERS
The following summary describes certain material U.S. federal income and, to
a limited extent, certain U.S. federal estate tax consequences relating to the
purchase, ownership and disposition of the common shares applicable to non-U.S.
holders, as defined below. This summary is based on the Internal Revenue Code of
1986, or the Code, and Treasury regulations promulgated thereunder,
administrative pronouncements and judicial decisions, changes to any of which
subsequent to the date of this prospectus may affect the tax consequences
described herein. We undertake no obligation to update this tax summary in the
future. This summary applies only to non-U.S. holders that will hold the common
shares as capital assets within the meaning of Section 1221 of the Code. This
summary does not purport to be a complete analysis of all the potential tax
consequences that may be material to a non-U.S. holder based on his or her
particular tax situation. For example, this summary does not address tax
consequences applicable to non-U.S. holders that may be subject to special tax
rules, such as 'controlled foreign corporations,' 'passive foreign investment
companies,' 'foreign personal holding companies,' certain former citizens and
long-term residents of the United States or corporations that accumulate
earnings to avoid U.S. federal income tax. Such persons should consult with
their own tax advisors to determine the U.S. federal tax consequences that may
be relevant to them. This discussion does not address the tax treatment of
partnerships or persons who hold their interests through partnerships or other
pass-through entities. If you are a partner in a partnership holding our common
shares, you should consult your tax advisor regarding the tax consequences of
the ownership and disposition of our common shares. This discussion does not
consider the effect of any applicable state, local, foreign or other tax laws,
including gift tax laws.
When we refer to a non-U.S. holder, we mean a beneficial owner of common
shares that for U.S. federal income tax purposes is other than:
a citizen or individual resident of the United States, as determined for
U.S. federal income tax purposes;
a corporation, or other entity taxable as a corporation for U.S. federal
income tax purposes, created or organized in or under the laws of the
United States or any state thereof or the District of Columbia;
an estate the income of which is subject to U.S. federal income taxation
regardless of its source; or
a trust that is subject to the primary supervision of a U.S. court and one
or more U.S. persons have the authority to control all substantial
decisions of the trust, or that has a valid election in effect under
applicable Treasury regulations to be treated as a U.S. person.
TAXATION OF DISTRIBUTIONS AND DISPOSITIONS
DISTRIBUTIONS ON COMMON SHARES
Generally, dividends paid to a non-U.S. holder will be subject to U.S.
withholding tax at a 30% rate, subject to the two following exceptions:
Dividends effectively connected with a trade or business of a non-U.S.
holder within the United States generally will not be subject to
withholding if the non-U.S. holder provides a properly executed IRS
Form W-8ECI (or other successor form) and otherwise complies with
applicable IRS certification requirements and generally will be subject to
U.S. federal income tax on a net income basis at regular rates. In the case
of a non-U.S. holder that is a corporation, such effectively connected
income also may be subject to the branch profits tax at a 30% rate (or such
lower rate as may be prescribed by an applicable tax treaty).
The withholding tax might not apply, or might apply at a reduced rate,
under the terms of an applicable tax treaty. Under Treasury regulations, to
obtain a reduced rate of withholding under a tax treaty, a non-U.S. holder
generally will be required to provide a properly executed IRS Form W-8BEN
(or other successor form) and otherwise satisfy the applicable
certification and other requirements. A non-U.S. holder of common shares
eligible for a reduced rate of U.S. withholding
7
tax may obtain a refund of any excess amounts withheld by filing an
appropriate claim for refund with the Internal Revenue Service, or the IRS.
DISPOSITIONS OF COMMON SHARES
Generally, a non-U.S. holder will not be subject to U.S. federal income tax
with respect to gain recognized upon the disposition of such holder's shares of
common shares unless:
the non-U.S. holder is an individual who is present in the United States
for 183 days or more in the taxable year of disposition and certain other
conditions are met;
such gain is effectively connected with the conduct by the non-U.S. holder
of a trade or business within the United States or, if a tax treaty
applies, the gain is effectively connected with the conduct by the non-U.S.
holder of a trade or business within the United States and is attributable
to a U.S. permanent establishment (or a fixed base in the case of an
individual) maintained by the non-U.S. holder; or
we are or have been a 'U.S. real property holding corporation' for U.S.
federal income tax purposes and, assuming that our common shares are deemed
to be 'regularly traded on an established securities market,' the non-U.S.
holder held, directly or indirectly, at any time during the five-year
period ending on the date of disposition or such shorter period that such
shares were held, more than five percent of our common shares.
An individual non-U.S. holder described in the first bullet point above will
be subject to a flat 30% tax on the gain derived from the sale, which may be
offset against U.S. source capital losses (even though the individual is not
considered a resident of the United States). A non-U.S. holder described in the
second bullet point above will be subject to tax on the gain derived from the
sale under regular graduated U.S. federal income tax rates and, if it is a
corporation, may be subject to the branch profits tax at a rate equal to 30% (or
such lower rate as may be prescribed by an applicable treaty). We do not believe
we currently are, and we do not currently anticipate becoming, a 'U.S. real
property holding corporation' for U.S. federal income tax purposes. As of the
date of this offering, our common shares will be regularly traded on an
established securities market.
FEDERAL ESTATE TAXES
Common shares owned or treated as owned by an individual who is a non-U.S.
holder (as specifically defined for U.S. federal estate tax purposes) at the
time of death will be included in the individual's gross estate for U.S. federal
estate tax purposes and may be subject to U.S. federal estate tax, unless an
applicable estate tax treaty provides otherwise.
INFORMATION REPORTING AND BACKUP WITHHOLDING
INFORMATION REPORTING
We must report annually to the IRS and to each non-U.S. holder the entire
amount of any dividend that is paid to such holder. Copies of the information
returns reporting such distributions and withholding may also be made available
to the tax authorities in the country in which the non-U.S. holder resides under
the provisions of an applicable income tax treaty.
The payment of proceeds from the sale of common shares by a broker to a
non-U.S. holder is generally not subject to information reporting if:
the beneficial owner of the common shares certifies its non-U.S. status
under penalties of perjury, or otherwise establishes an exemption; or
the sale of the common shares is effected outside the United States by a
foreign office, unless the broker is:
a U.S. person or U.S. related person as defined in the Code; or
a controlled foreign corporation for U.S. federal income tax purposes.
8
BACKUP WITHHOLDING
Dividends paid to a non-U.S. holder of common shares generally will be
exempt from backup withholding if the non-U.S. holder provides a properly
executed IRS Form W-8BEN or otherwise establishes an exemption. The payment of
proceeds from a disposition of common shares effected by a non-U.S. holder
outside the United States by or through a foreign office of a broker generally
will not be subject to backup withholding. Payment of the proceeds from a
disposition by a non-U.S. holder of common shares made by or through the U.S.
office of a broker is generally not subject to backup withholding if the
non-U.S. holder provides a properly executed IRS Form W-8BEN or otherwise
establishes an exemption. Notwithstanding the foregoing, backup withholding may
apply if either we, our paying agent or the broker has actual knowledge, or
reason to know, that the non-U.S. holder is a U.S. person.
Backup withholding is not an additional tax. Any amount withheld from a
payment to a non-U.S. holder under these rules will be allowed as a credit
against such holder's U.S. federal income tax liability and may entitle such
holder to a refund, provided that the required information is furnished timely
to the IRS.
THE U.S. FEDERAL INCOME AND ESTATE TAX DISCUSSION SET FORTH ABOVE IS
INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
HOLDER'S PARTICULAR SITUATION. POTENTIAL INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP
AND DISPOSITION OF THE COMMON SHARES, INCLUDING THE TAX CONSEQUENCES UNDER U.S.
FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX LAWS, INCLUDING GIFT AND ESTATE TAX
LAWS, AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
9
SELLING SHAREHOLDER
On October 4, 2000, following shareholder approval, we issued to each of Ian
M. Cumming and Joseph S. Steinberg, our Chairman and President, respectively,
warrants to purchase 400,000 common shares at an exercise price of $23.95 per
share, 105% of the closing price of a common share, as reported on the New York
Stock Exchange Composite Tape, on May 16, 2000, the date of the Board of
Directors' resolution authorizing the issuance of the warrants. On June 16,
2004, the selling shareholder purchased the warrants from Mr. Steinberg.
The selling shareholder and its affiliates from time to time have provided
in the past and may provide future commercial or investment banking and
financial advisory services to us and our affiliates in the ordinary course of
business, for which they have received or will receive customary compensation.
In addition, the selling shareholder and its affiliates have engaged in the past
and may engage in the future in securities transactions with us and our
affiliates on an arms'-length basis. We have an equity interest in Jefferies
Partners Opportunity Fund II, LLC, a registered broker-dealer managed and
controlled by the selling shareholder. For further information, see our Annual
Report on Form 10-K for the fiscal year ended December 31, 2003 incorporated by
reference into this prospectus.
The following table sets forth certain information concerning the number of
common shares that may be offered from time to time under this prospectus by the
selling shareholder named in the table. We prepared this table based on the
information supplied to us by the selling shareholder and we have not sought to
verify such information. The selling shareholder is a registered broker-dealer.
The selling shareholder acquired the warrant for investment purposes, and not as
compensation for underwriting activities. The selling shareholder may be
considered to be an underwriter, within the meaning of the Securities Act, with
respect to any common shares that it sells pursuant to this prospectus.
The percentages of common shares beneficially owned and being offered are
based on the number of our common shares that were outstanding as of August 16,
2004. Because the selling shareholder may offer all or some portion of the
common shares pursuant to this prospectus, we have assumed for purposes of the
table below that the selling shareholder will sell all of the common shares
offered by this prospectus pursuant to this prospectus. As of August 16, 2004,
we had 70,900,502 common shares outstanding.
To prevent dilution to the selling shareholder, pursuant to Rule 416 under
the Securities Act, the numbers in the table below may change if additional
common shares become issuable upon exercises of the warrants to prevent dilution
resulting from stock splits, stock dividends or similar events involving our
common shares. The number of common shares beneficially owned by the selling
shareholder is determined under rules promulgated by the SEC, and it is not
necessarily indicative of beneficial ownership for any other purpose.
The selling shareholder has not held any position or office or has had any
material relationship with us within the past three years, except as otherwise
described above:
PRIOR TO OFFERING(a)(b) AFTER OFFERING(b)(c)
NAME AND POSITION ------------------------------------- -------------------------------------
WITH THE COMPANY NUMBER OF SHARES PERCENT OF CLASS NUMBER OF SHARES PERCENT OF CLASS
IN THE PAST BENEFICIALLY BENEFICIALLY BENEFICIALLY BENEFICIALLY
THREE YEARS, IF ANY OWNED(E) OWNED OWNED OWNED
------------------- -------- ----- ----- -----
Jefferies & Company,
Inc. .................... 418,597(d) * 18,597(e) *
---------
* Less than 1%.
(a) Includes common shares issuable upon exercise of warrants.
(b) Based on 70,900,502 common shares outstanding as of August 16, 2004 plus
the 400,000 common shares issuable upon exercise of the warrants held by
the selling shareholder and 18,577 common shares issuable upon conversion
of our 3 3/4% Convertible Senior Subordinated Notes due 2014 currently
held by the selling shareholder.
(c) We do not know when or in what amounts the selling shareholder may offer
for sale common shares pursuant to this offering. The selling shareholder
may sell the common shares covered by this prospectus from time to time,
and may also decide not to sell any or all of the common shares it
is allowed to sell under this prospectus. Because the selling shareholder
may offer all or some of the common shares pursuant to this offering, we
cannot estimate the number of common shares that the selling shareholder
will hold after completion of the offering. For purposes of this table,
we have assumed that the selling shareholder will have sold all of the
common shares covered by this prospectus upon the completion of the
offering.
(footnotes continued on next page)
10
(footnotes continued from previous page)
(d) Consists of 400,000 common shares that may be offered hereby which the
selling shareholder currently has the right to acquire upon exercise of
warrants, 18,577 common shares issuable upon conversion of our
convertible notes currently held by the selling shareholder and 20 common
shares currently held by the selling shareholder. From time to time, the
selling shareholder may acquire or dispose of our common shares and/or
our convertible notes and may hold a long or short position in such
securities.
(e) Consists of 18,577 common shares issuable upon conversion of our
convertible notes currently held by the sellling shareholder and 20
common shares currently held by the selling shareholder. From time to
time, the selling shareholder may acquire or dispose of our common shares
and/or our convertible notes, and may hold a long or short portion of
such securities.
11
PLAN OF DISTRIBUTION
The selling shareholder, which term includes all transferees, pledges,
donees or their successors, may from time to time sell the common shares covered
by this prospectus, directly to purchasers or offer the common shares through
underwriters, broker-dealers or agents, who may receive compensation in the form
of underwriting discounts, concessions or commissions from the selling
shareholder and/or the purchasers of common shares for whom they may act as
agent, which discounts, concessions or commissions as to any particular
underwriter, broker-dealer or agent may be in excess of those customary in the
types of transactions involved.
The common shares may be sold in one or more transactions:
at fixed prices;
at prevailing market prices at the time of sale;
at varying prices determined at the time of sale; or
at negotiated prices.
The sales may be effected in transactions that may involve crosses or block
transactions, in the following manner:
on any national securities exchange or quotations service on which the
common shares may be listed or quoted at the time of sale, including the
New York Stock Exchange;
in the over-the-counter-market;
in transactions otherwise than on these exchanges or services or in the
over-the-counter market; or
through the writing and exercise of options, whether these options are
listed on any options exchange or otherwise.
In connection with the sale of the common shares, the selling shareholder
may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the common shares in
the course of hedging position they assume. The selling shareholder may sell the
common shares short and deliver common shares to close out short positions, or
loan or pledge the common shares to broker-dealers that in turn may sell these
common shares.
Our outstanding common shares are listed for trading on the New York Stock
Exchange and the Pacific Exchange, Inc. under the symbol 'LUK.'
In order to comply with the securites laws of some jurisidicitons, if
applicable, the holders of common shares may offer and sell those common shares
in such jurisdictions only through registered or licensed brokers or dealers. In
addition, under certain circumstances, in some jurisdictions the common shares
may not be offered or sold unless they have been registered or qualified for
sale in the applicable jurisdiction or an exemption from registration or
qualification requirements is available and is complied with.
The selling shareholder and any underwriters, broker-dealers or agents that
participate in the sale of the common shares, may be 'underwriters' within the
meaning of Section 2(11) of the Securities Act. Any discounts, commissions,
concessions or profit they earn on any sale of the common shares may be
underwriting compensation under the Securities Act. The selling shareholder has
acknowledged that it understands its obligations to comply with the provisions
of the Exchange Act and the rules thereunder relating to stock manipulation,
particularly Regulation M, and have agreed that it will not engage in any
transaction in violation of such provisions.
If required, at the time of a particular offering of common shares by the
selling shareholder, a supplement to this prospectus will be circulated setting
forth the name or names of any underwriters, broker-dealers or agents, any
discounts, commissions or other terms constituting compensation for underwriters
and any discounts, commissions or concessions allowed or reallowed or paid to
agents or broker-dealers.
The warrants obligate us to register the common shares issuable upon
exercise of the warrants, under applicable federal and state securities laws
under specific circumstances and at specific times. The warrants provide for
cross indemnification of the selling shareholder and us and our respective
directors, officers
12
and controlling persons against specific liabilities in connection with the
offer and sale of the common shares, including liabilities under the Securities
Act. In the event the selling shareholder sells its common shares through any
underwriter, the warrants provide for indemnification by us of those
underwriters and their respective directors, officers and controlling persons
against specified liabilities in connection with the offer and sale of those
common shares. Pursuant to the warrants, we will bear all fees and expenses
incurred in connection with the registration of the common shares, except that
selling shareholder will pay all broker's commissions and, in connection with
any underwritten offering, underwriting discounts and commissions.
We are required by the terms of the warrants to file any amendments and
supplements to this prospectus and the registration statement of which this
prospectus is a part as may be necessary to keep the registration statement
effective for the shorter of 30 days or the completion of the distribution and
to comply with the provisions of the Securities Act with respect to the
disposition of the common shares covered by the registration statement in
accordance with the selling shareholders intended method of distribution.
LEGAL MATTERS
Weil, Gotshal & Manges LLP has passed upon the validity of the common shares
on behalf of us. Members of Weil, Gotshal & Manges LLP beneficially own, in the
aggregate, approximately 108,000 common shares, representing less than 0.1% of
the outstanding common shares.
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 Quarterly Reports on Form 10-Q for the quarters ended March 31, 2004
and June 30, 2004;
our Current Reports on Form 8-K filed with the Commission on March 15,
2004, March 22, 2004, March 26, 2004, April 22, 2004, May 7, 2004,
August 6, 2004 and August 17, 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.
13
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, an independent registered public accounting firm,
and, insofar as they relate to WilTel Communications Group, Inc., in reliance
upon the report of Ernst & Young LLP, an independent registered public
accounting firm, 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.
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, an independent registered
public accounting firm, 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 period January 1, 2002 through October 31, 2002, and
for the year ended December 31, 2001 (Predecessor Company), have been audited by
Ernst & Young LLP, an independent registered public accounting firm, 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, an independent registered public accounting firm, 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.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
registrant in connection with the resales of the securities to be registered,
other than underwriting commissions. All amounts shown are estimates except the
SEC registration statement filing fee. The selling shareholders will pay none of
the expenses listed below:
AMOUNT TO
BE PAID
---------
SEC registration statement filing fee....................... $ 2,583
Printing fees and expenses.................................. 10,000
Legal fees and expenses..................................... 45,000
Accounting fees and expenses................................ 30,000
Other....................................................... 12,417
--------
Total............................................... $100,000
--------
--------
ITEM 15. 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.
II-1
ITEM 16. EXHIBITS.
(a)
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 -- Specimen Common Share certificate.*
5.1 -- Opinion of Weil, Gotshal & Manges LLP.*
23.1 -- Consent of PricewaterhouseCoopers LLP, independent
registered public accountants 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 registered
public accountants of WilTel Communications Group, Inc.*
23.5 -- Consent of Ernst & Young LLP, independent auditors of The
FINOVA Group Inc.*
23.6 -- Consent of KPMG LLP, independent registered public
accountants of Jefferies Partners Opportunity Fund II,
LLC.*
23.7 -- Consent of BDO Seidman, LLP, independent registered
public accountants 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.*
---------
* Previously filed.
ITEM 17. UNDERTAKINGS.
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:
a. To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
b. 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
maximum aggregate offering price set forth in the 'Calculation of
Registration Fee' table in the effective registration statement;
c. 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;
provided, however, that clauses (a) and (b) do not apply if the information
required to be included in a post-effective amendment by such clauses is
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 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.
II-2
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.
Each undersigned registrant hereby undertakes that, for purposes of
determining any liability under
the Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the registration statement 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
registrant pursuant to the foregoing provisions or otherwise, each 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 each registrant of expenses incurred
or paid by a director, officer or controlling person of such 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, each 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.
The undersigned registrant hereby undertakes that:
1. For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance on Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective;
2. For purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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;
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act ('Act') in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Act.
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 17th day of August, 2004.
LEUCADIA NATIONAL CORPORATION
By: /s/ JOSEPH A. ORLANDO
..................................
JOSEPH A. ORLANDO
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
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
---- ----- ----
* Chairman of the Board August 17, 2004
......................................... (Principal Executive Officer)
(IAN M. CUMMING)
* President and Director August 17, 2004
......................................... (Principal Executive Officer)
(JOSEPH S. STEINBERG)
/S/ JOSEPH A. ORLANDO Vice President and Chief Financial August 17, 2004
......................................... Officer
(JOSEPH A. ORLANDO) (Principal Financial Officer)
* Vice President and Comptroller August 17, 2004
......................................... (Principal Accounting Officer)
(BARBARA L. LOWENTHAL)
* Director August 17, 2004
.........................................
(PAUL M. DOUGAN)
* Director August 17, 2004
.........................................
(LAWRENCE D. GLAUBINGER)
* Director August 17, 2004
.........................................
(ALAN J. HIRSCHFIELD)
/S/ JAMES E. JORDAN Director August 17, 2004
.........................................
(JAMES E. JORDAN)
* Director August 17, 2004
.........................................
(JEFFREY C. KEIL)
* Director August 17, 2004
.........................................
(JESSE CLYDE NICHOLS, III)
By: /s/ Joseph A. Orlando
.......................................
Attorney-in-fact
II-4
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
4.1 -- Specimen Common Share certificate.*
5.1 -- Opinion of Weil, Gotshal & Manges LLP.*
23.1 -- Consent of PricewaterhouseCoopers LLP, independent
registered public accountants 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 registered
public accountants of WilTel Communications Group, Inc.*
23.5 -- Consent of Ernst & Young LLP, independent auditors of The
FINOVA Group Inc.*
23.6 -- Consent of KPMG LLP, independent registered public
accountants of Jefferies Partners Opportunity Fund II,
LLC.*
23.7 -- Consent of BDO Seidman, LLP, independent registered
public accountants 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.*
---------
* Previously filed.
II-5