THE TRANSFER OF THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE
\nHEREOF IS SUBJECT TO CERTAIN RESTRICTIONS CONTAINED IN PARAGRAPH 10 HEREOF, AND
\nTHE HOLDER OF THIS WARRANT BY ACCEPTANCE HEREOF AGREES TO BE BOUND BY SUCH
\nRESTRICTIONS. THE TRANSFER OF THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON
\nEXERCISE HEREOF IS SUBJECT TO RESTRICTIONS PURSUANT TO PART III OF ARTICLE
\nFOURTH OF THE CERTIFICATE OF INCORPORATION OF LEUCADIA NATIONAL CORPORATION
\nREPRINTED IN ITS ENTIRETY ON APPENDIX 1 OF THIS WARRANT. COMMON SHARE PURCHASE
\nWARRANT To Subscribe for and Purchase Common Shares of LEUCADIA NATIONAL
\nCORPORATION Warrant to Purchase 2,000,000 Common Shares THIS CERTIFIES that,
\nfor value received, [_________________________] (the “Executive”) is
\nentitled to subscribe for and purchase from LEUCADIA NATIONAL CORPORATION,
\nincorporated under the laws of the State of New York (hereinafter called the
\n“Company”), at the price of $33.84 per share (the “initial warrant purchase
\nprice”), two million (2,000,000) fully paid and nonassessable Common Shares, $1
\npar value, of the Company (“Common Shares”), subject, however, to the provisions
\nand upon the terms and conditions hereinafter set forth. The initial warrant
\npurchase price and the number and character of the shares with respect to which
\nthis Warrant is exercisable are subject to adjustment as hereinafter provided.
\n1. Exercise; Issuance of Certificates; Payment for Shares. 1A. The Warrants
\nshall expire at 5:00 p.m. New York City time on March 7, 2016 and shall vest in
\nfive equal tranches over the five year term of the warrant, with twenty percent
\n(20%) vesting on the date shareholder approval is received, and an additional
\ntwenty percent (20%) vesting on each of March 7, 2012, 2013, 2014 and 2015;
\nprovided that if the Executive has voluntarily terminated his employment with
\nthe Company or has been terminated for “cause” on or before any such date, then
\nno further vesting of Common Shares shall occur from and after such termination
\ndate. “Cause” for purposes hereof is defined as the commission by the Executive
\nof any act of gross negligence in the performance of his duties or obligations
\nto the Company or any of its subsidiary or affiliated companies, or the
\ncommission by the Executive of any material act of disloyalty, dishonesty or
\nbreach of trust against the Company or any of its subsidiary or affiliated
\ncompanies. Upon the death of the Executive during his employment with the
\nCompany, any unvested portion of the Warrant shall vest immediately. <\/p>\n
1<\/p>\n
<\/p>\n
1B. In the event that the Board of Directors or the Compensation Committee
\naccelerates vesting of outstanding stock options issued under any stock option
\nplan of the Company pursuant to the terms thereof, the Warrants shall become
\nimmediately exercisable. 1C. The rights may be so exercised by such holder
\nhereof by the surrender of this Warrant (with the Subscription Agreement annexed
\nhereto appropriately completed) to the Company at its offices at 315 Park Avenue
\nSouth, New York, New York (or such other office or agency of the Company in New
\nYork, New York, as it may designate by notice in writing to the holder hereof at
\nthe address of such holder appearing on the books of the Company at any time
\nwithin the period above named) and by payment of the initial warrant purchase
\nprice (as such initial warrant purchase price may be adjusted under this
\nWarrant), at the election of the Executive in one or a combination of the
\nfollowing manners (i) by tendering in cash, by certified or cashier153s check or
\nby wire transfer payable to the order of the Company, (ii) by having the Company
\nwithhold shares of Common Shares issuable upon exercise of this Warrant equal in
\nvalue to the aggregate initial warrant purchase price (as such initial warrant
\npurchase price may be adjusted under this Warrant) as to which this Warrant is
\nso exercised based on the average closing price of the Common Shares as quoted
\non the New York Stock Exchange for the five (5) consecutive trading days ending
\non and including the trading day immediately prior to the date on which this
\nWarrant and the Subscription Agreement are delivered to the Company or (iii)
\nsuch other method of paying the initial warrant purchase price (as such initial
\nwarrant purchase price may be adjusted under this Warrant) as the Compensation
\nCommittee determines to be consistent with applicable law and the terms of the
\nWarrant. 1D. Subject to the provisions of the next succeeding paragraph,
\ncertificates for the shares so purchased shall be delivered to the holder hereof
\nor his designee promptly after such surrender and delivery, and, unless this
\nWarrant shall have expired, a new Warrant representing the number of shares, if
\nany, with respect to which this Warrant shall not then have been exercised shall
\nalso be delivered to the holder hereof. 2. Agreement of Holder. The holder of
\nthis Warrant, by his acceptance hereof, represents that he is acquiring this
\nWarrant, and will acquire the Common Shares issuable upon any exercise of this
\nWarrant by such holder, for his own account for investment and not with a view
\nto the distribution thereof or with any present intention of selling any
\nthereof, except for a sale of such Common Shares in compliance with the
\nprovisions of the Securities Act of 1933, as amended, and the rules and the
\nregulations thereunder. 3. Shares to be Fully Paid. Reservation of
\nShares. All shares issued upon the exercise of the rights represented by this
\nWarrant shall be validly issued, fully paid and nonassessable (except as
\notherwise provided in Section 630 of the New York Business Corporation Law) and
\nfree from all taxes, liens and charges with respect to the issue thereof (other
\nthan taxes in respect of any transfer occurring contemporaneously with such
\nissue). The Company shall from time to time take all such action as may be
\nrequisite to assure that the par value per Common Share is at all times equal to
\nor less than the warrant purchase price per share then in effect. During the
\nperiod within which the rights represented by this Warrant may be exercised, the
\nCompany shall at all time have authorized, and reserved for the purpose of
\nissuance or transfer upon exercise of the rights evidenced by this Warrant, a
\nsufficient number of Common Shares to provide for the exercise of the rights
\nrepresented by this Warrant. The Company shall take all such action as may be
\nnecessary to assure that such Common Shares may be so issued without violation
\nof any applicable law or regulation, or of any requirements of any domestic
\nsecurities exchange upon which the Common Shares of the Company may be
\nlisted. The Company shall not take any action which would result in any
\nadjustment of the warrant purchase price if the total number of Common Shares
\nissuable after such action upon exercise of all Warrants then outstanding would
\nexceed the total number of then authorized but unissued Common Shares.
\n4. Adjustments. The above provisions are, however, subject to the following:
\n4A. Warrant Purchase Price Defined. The initial warrant purchase price set
\nforth in the initial paragraph of this Warrant shall be subject to adjustment
\nfrom time to time as hereinafter provided. The term “warrant purchase price”
\nshall mean, unless and until any such adjustment shall occur, the initial
\nwarrant purchase price and, after any such adjustment, the warrant purchase
\nprice resulting from such adjustment.
\n 2<\/p>\n
<\/p>\n
4B. Adjustment of Number of Shares. Upon each adjustment of the warrant
\npurchase price, the holder of this Warrant shall thereafter be entitled to
\npurchase, at the warrant purchase price resulting from such adjustment, the
\nnumber of Common Shares obtained by multiplying the warrant purchase price in
\neffect immediately prior to such adjustment by the number of shares purchasable
\npursuant hereto immediately prior to such adjustment and dividing the product
\nthereof by the warrant purchase price resulting from such adjustment.
\n4C. Adjustment of Warrant Purchase Price Upon Issuance of Common Shares. If and
\nwhenever after the date hereof the Company shall issue or sell any Common Shares
\nwithout consideration or for a consideration per share less than the warrant
\npurchase price in effect immediately prior to the time of such issue or sale,
\nthen, and in each such case, forthwith upon such issue or sale, the warrant
\npurchase price shall be reduced to a price (calculated to the nearest cent)
\ndetermined by dividing (i) an amount equal to the sum of (X) the number of
\nCommon Shares outstanding immediately prior to such issue or sale multiplied by
\nthe then existing warrant purchase price, plus (Y) the consideration, if any,
\nreceived by the Company upon such issue or sale, by (ii) the total number of
\nCommon Shares outstanding immediately after such issue or sale. No adjustment
\nshall be made in an amount less than $.05 per share, but any such lesser
\nadjustment shall be carried forward and shall be made at the time and together
\nwith the next subsequent adjustment which together with any adjustments so
\ncarried forward shall amount to $.05 per share or more. Notwithstanding the
\nforegoing, no adjustment shall be made unless such adjustment is in compliance
\nwith the provisions of Section 409A of the Internal Revenue Code of 1986, as
\namended and the rules and regulations promulgated thereunder or other published
\nguidance with respect thereto. For the purposes of this paragraph 4(C), the
\nfollowing provisions (1) to (6), inclusive, shall also be applicable:
\n(1) Issuance of Rights or Options. In case at any time the Company shall in any
\nmanner grant (whether directly or by assumption in a merger or otherwise) any
\nrights to subscribe for or to purchase, or any options (other than employee
\nstock options granted pursuant to a stock option plan of the Company) for the
\npurchase of, Common Shares, whether or not such rights or options are
\nimmediately exercisable, and the price per share for which Common Shares are
\nissuable upon the exercise of such rights or options (determined by dividing (i)
\nthe total amount, if any, received or receivable by the Company as
\nconsideration for the granting of such rights or options, plus the minimum
\naggregate amount of additional consideration payable to the Company upon the
\nexercise of such rights or options by (ii) the total maximum number of Common
\nShares issuable upon the exercise of such rights or options) shall be less than
\nthe warrant purchase price in effect immediately prior to the time of the
\ngranting of such rights or options, then the total maximum number of Common
\nShares issuable upon the exercise of such rights or options shall (as of the
\ndate of granting of such rights or options) be deemed to be outstanding and to
\nhave been issued for such price per share. No further adjustments of the
\nwarrant purchase price shall be made upon the actual issue of such Common
\nShares, except as otherwise provided in paragraph 4C(2). (2) Changes in Rights
\nor Options. If the purchase price provided for in any rights or options
\nreferred to in paragraph 4C(1) shall change at any time (other than under or by
\nreason of provisions designed to protect against dilution), the warrant purchase
\nprice in effect at the time of such event shall forthwith be readjusted to the
\nwarrant purchase price which would have been in effect at such time had such
\nrights or options still outstanding provided for such changed purchase price at
\nthe time initially granted, issued or sold. Upon the expiration of any such
\noption or right, the warrant purchase price then in effect hereunder shall
\nforthwith be increased to the warrant purchase price which would have been in
\neffect at the time of such expiration had such right or option to the extent
\noutstanding immediately prior to such expiration never been issued and the
\nCommon Shares issuable thereunder shall no longer be deemed to be outstanding;
\nprovided, however, that no such increase in the warrant purchase price shall be
\nmade in an amount in excess of the amount of the adjustment thereof initially
\nmade in respect of the granting of such rights or 3<\/p>\n
options. If the purchase price provided for in any such right or option
\nreferred to in paragraph 4C(1) shall be reduced at any time under or by reason
\nof provisions with respect thereto designed to protect against dilution, then in
\ncase of the delivery of Common Shares upon the exercise of any such right or
\noption the warrant purchase price then in effect hereunder shall forthwith be
\nadjusted to such respective amount as would have been obtained had such right or
\noption never been issued as to such Common Shares and had adjustments been made
\nupon the issuance of the Common Shares delivered as aforesaid, but only if as a
\nresult of such adjustment the warrant purchase price then in effect hereunder is
\nthereby reduced. (3) Stock Dividends. In case the Company shall declare a
\ndividend or make any other distribution upon any shares of the Company payable
\nin Common Shares, any Common Shares issuable in payment of such dividend or
\ndistribution shall be deemed to have been issued or sold without consideration.
\n (4) Consideration for Shares. In case any Common Shares or any rights or
\noptions to purchase Common Shares shall be issued or sold for cash, the
\nconsideration received therefor shall be deemed to be the amount received by the
\nCompany therefor, after deduction therefrom of any expenses incurred or any
\nunderwriting commissions or concessions paid or allowed by the Company in
\nconnection therewith. In case any Common Shares or any rights or options to
\npurchase Common Shares shall be issued or sold for a consideration other than
\ncash, or partly for cash and for a consideration other than cash, the amount of
\nthe consideration other than cash received by the Company shall be deemed to be
\nthe lesser of (i) the fair market value on the issue date of the securities so
\nissued by the Company, after deduction of any expenses incurred or any
\nunderwriting commissions or concessions paid or allowed by the Company in
\nconnection therewith, or (ii) the fair value of such consideration as determined
\nin good faith by the Board of Directors of the Company after deduction of any
\nsuch expenses. In case any Common Shares or any rights or options to purchase
\nCommon Shares shall be issued in connection with any merger in which the Company
\nissues any securities, the amount of consideration therefor shall be deemed to
\nbe the fair value as determined in good faith by the Board of Directors of the
\nCompany of such portion of the assets and business of the non-surviving
\ncorporation as such Board in good faith shall determine to be attributable to
\nsuch Common Shares, or rights or options, as the case may be. In the event of
\nany consolidation or merger of the Company in which the Company is not the
\nsurviving corporation or in the event of any sale of all or substantially all of
\nthe assets of the Company for shares or other securities of any corporation, the
\nCompany shall be deemed to have issued a number of Common Shares for shares or
\nsecurities of the other corporation computed on the basis of the actual exchange
\nratio on which the transaction was predicated and the consideration received
\nfrom such issuance shall be equal to the fair market value on the date of such
\ntransaction of such shares or securities of the other corporation, and if any
\nsuch calculation results in adjustment of the warrant purchase price, the
\ndetermination of the number of Common Shares receivable upon exercise of this
\nWarrant immediately prior to such merger, conversion or sale, for purposes of
\nparagraph 4F shall be made after giving effect to such adjustment of the warrant
\npurchase price. (5) Record Date. In case the Company shall take a record of
\nthe holders of its Common Shares for the purpose of entitling them (i) to
\nreceive a dividend or other distribution payable in Common Shares, or (ii) to
\nsubscribe for or purchase Common Shares, then such record date shall be deemed
\nto be the date of the issue or sale of the Common Shares deemed to have been
\nissued or sold upon the declaration of such dividend or the making of such other
\ndistribution or the date of the granting of such right of subscription or
\npurchase, as the case may be. (6) Treasury Shares. The number of Common
\nShares outstanding at any given time shall not include shares owned or held by
\nor for the account of the Company, and the disposition of any such shares shall
\nbe considered an issue or sale of Common Shares for the purposes of this
\nparagraph 4(C).
\n 4<\/p>\n
<\/p>\n
4D. Dividends and Distributions. If the Company shall at any time declare a
\ndividend or make a distribution in respect of its Common Shares, the warrant
\npurchase price in effect immediately prior to the declaration of such dividend
\nor the making of such distribution shall be reduced by an amount equal, in the
\ncase of a dividend or distribution in cash, to the amount thereof payable per
\nCommon Share or, in the case of any other dividend distribution, to the fair
\nvalue thereof per Common Share as determined in good faith by the Board of
\nDirectors of the Company; provided that no adjustment under this paragraph 4(D)
\nshall be required in the case of a cash dividend payable out of earnings or
\nsurplus and otherwise than in securities of the Company unless such cash
\ndividend is a special dividend as determined in good faith by the Board of
\nDirectors of the Company. If the Company shall at any time declare a dividend
\nor make a distribution in respect of its Common Shares in securities of the
\nCompany other than Common Shares, the holder of this Warrant shall be entitled
\nto receive upon exercise of this Warrant such securities as such holder would
\nhave been entitled to receive had this Warrant been exercised immediately prior
\nto such dividend or distribution. For the purposes of the foregoing, a dividend
\nin cash shall be considered payable out of earnings or surplus only to the
\nextent that such earnings or surplus are charged an amount equal to such
\ndividend as determined by the Board of Directors of the Company. Such
\nreductions shall take effect as of the date on which a record is taken for the
\npurpose of such dividend or distribution, or, if a record is not taken, the date
\nas of which the holders of Common Shares of record entitled to such dividend or
\ndistribution are to be determined. 4E. Subdivision or Combination of
\nShares. In case the Company shall at any time subdivide its outstanding Common
\nShares into a greater number of shares or pay a dividend or other distribution
\nupon any shares of the Company payable in Common Shares, the warrant purchase
\nprice in effect immediately prior to such subdivision or payment date shall be
\nproportionately reduced. In case the outstanding Common Shares of the Company
\nshall be combined into a smaller number of shares, the warrant purchase price in
\neffect immediately prior to such combination shall be proportionately increased.
\n 4F. Reorganization, Reclassification, Consolidation, Merger or Sale. If any
\ncapital reorganization or reclassification of the capital shares of the Company,
\nany consolidation or merger of the Company with another corporation, or any sale
\nof all or substantially all of the assets of the Company to another corporation
\nshall be effected in such a way that holders of Common Shares shall be entitled
\nto receive stock, securities or assets with respect to or in exchange for Common
\nShares, then, as a condition of such reorganization, reclassification,
\nconsolidation, merger or sale, lawful and adequate provision shall be made
\nwhereby the holder hereof shall thereafter have the right to purchase and
\nreceive, upon the basis and upon the terms and conditions specified in this
\nWarrant and in lieu of the Common Shares of the Company immediately theretofore
\npurchasable and receivable upon the exercise of the rights represented hereby,
\nsuch shares of stock, securities or assets as may be issued or payable with
\nrespect to or in exchange for a number of outstanding Common Shares equal to the
\nnumber of shares immediately theretofore purchasable and receivable upon the
\nexercise of the rights represented hereby had such reorganization,
\nreclassification, consolidation, merger or sale not taken place, and in any such
\ncase appropriate provision shall be made with respect to the rights and interest
\nof the holder of this Warrant to the end that the provisions hereof (including
\nwithout limitation provisions for adjustments of the warrant purchase price and
\nof the number of shares purchasable and receivable upon the exercise of this
\nWarrant) shall thereafter be applicable, as nearly as may be, in relation to any
\nshares of stock, securities or assets thereafter deliverable upon the exercise
\nhereof. The Company will not effect any such consolidation, merger or sale
\nunless prior to the consummation thereof the successor corporation (if other
\nthan the Company) resulting from such consolidation or merger or the corporation
\npurchasing such assets shall assume by written instrument, executed and mailed
\nor delivered to, and in form and substance satisfactory to, the registered
\nholder hereof (who shall not unreasonably withhold his approval) at the last
\naddress of such holder appearing on the books of the Company, (i) the obligation
\nto deliver to such holder such shares of stock, securities or assets as, in
\naccordance with the foregoing provisions, such holder may be entitled to
\npurchase, and (ii) all other obligations of the Company under this Warrant.
\n4G. Notice of Adjustments. Upon each adjustment or readjustment of the warrant
\npurchase price or in the nature of the Common Shares, securities or other
\nproperty receivable upon the exercise of this Warrant, the Company at its
\nexpense will promptly compute such adjustment or readjustment in accordance with
\nthe terms of this Warrant and prepare a certificate setting forth such
\nadjustment or readjustment
\n 5<\/p>\n
<\/p>\n
and showing in detail the facts upon which such adjustment or readjustment is
\nbased. The Company shall forthwith mail a copy of each such certificate
\naddressed to the holder of this Warrant at the address of such holder as shown
\non the books of the Company. 4H. Other Notices. In case at any time: (1) the
\nCompany shall declare any dividend upon its Common Shares payable in shares or
\nauthorize any other distribution (other than regular cash dividends) to the
\nholders of its Common Shares; (2) the Company shall offer for subscription pro
\nrata to the holders of its Common Shares any additional shares of any class or
\nother rights; (3) there shall be any capital reorganization, or
\nreclassification of the capital shares of the Company (other than a transaction
\ncovered by paragraph 4F), or consolidation or merger of the Company with, or
\nsale of all or substantially all of its assets to, another corporation; or
\n(4) there shall be a voluntary or involuntary dissolution, liquidation or
\nwinding up of the Company; then, in any one or more of said cases, the Company
\nshall give, by first class mail, postage prepaid, addressed to the holder of
\nthis Warrant at the address of such holder as shown on the books of the Company,
\n(a) at least 10 days153 prior written notice of the date on which the books of the
\nCompany shall close or a record shall be taken for such dividend, distribution
\nof subscription rights or for determining rights to vote in respect of any such
\nreorganization, reclassification, consolidation, merger, sale, dissolution,
\nliquidation or winding up, and (b) in the case of such reorganization,
\nreclassification, consolidation, merger, sale, dissolution, liquidation or
\nwinding up, at least 10 days153 prior written notice of the date when the same
\nshall take place. Such notice in accordance with the forgoing clause (a) shall
\nalso specify, in the case of any such dividend, distribution or subscription
\nrights, the date on which the holders of Common Shares shall be entitled
\nthereto, and such notice in accordance with the foregoing clause (b) shall also
\nspecify the date on which the holders of Common Shares shall be entitled to
\nexchange their Common Shares for securities or other property deliverable upon
\nsuch reorganization, reclassification, consolidation, merger, sale, dissolution,
\nliquidation or winding up, as the case may be. 4I. Certain Events. If any
\nevent occurs, as to which, in the opinion of the Board of Directors of the
\nCompany, the other provisions of this paragraph 4 are not strictly applicable or
\nif strictly applicable would not fairly protect the purchase rights of this
\nWarrant in accordance with the essential intent and principles of such
\nprovisions, then the Board of Directors shall make an adjustment in the
\napplication of such provisions, in accordance with such essential intent and
\nprinciples, so as to protect such purchase rights as aforesaid, but in no event
\nshall any such adjustment have the effect of increasing the warrant purchase
\nprice as otherwise determined pursuant to this Paragraph 4 except in the event
\nof a combination of shares of the type contemplated in paragraph 4E and then in
\nno event to an amount larger than the warrant purchase price as adjusted
\npursuant to paragraph 4E. 5. Issue Tax. The issuance of certificates for
\nCommon Shares upon the exercise of this Warrant shall be made without charge to
\nthe holders hereof for any issuance tax in respect thereof, and all such
\nissuance taxes shall be paid or provided for by the Company prior to the
\nissuance of such certificates. 6. No Voting Rights. This Warrant shall not
\nentitle the holder hereof to any voting rights or other rights as a shareholder
\nof the Company. 7. Listing of Shares. The Company agrees to use its best
\nefforts to secure, as soon as practicable after the date hereof, the listing of
\nthe Common Shares issuable upon the exercise of this Warrant, subject to
\nofficial notice of issuance, on the New York Stock Exchange, Inc.
\n 6<\/p>\n
<\/p>\n
8. Warrant Transferable; Registration Books. Subject to the provisions of
\nparagraph 10, this Warrant and all rights hereunder are transferable, in whole
\nor in part, at the office of the Company referred to in paragraph 1 by the
\nholder hereof in person or by duly authorized attorney, upon surrender of this
\nWarrant properly endorsed. Each taker and holder of this Warrant, by taking or
\nholding the same, consents and agrees that this Warrant, when endorsed in blank,
\nshall be deemed negotiable, and that the holder hereof, when this Warrant shall
\nhave been so endorsed, may be treated by the Company and all other persons
\ndealing with this Warrant as the absolute owner hereof for any purpose and as
\nthe person entitled to exercise the rights represented by this Warrant, or to
\nthe transfer hereof on the books of the Company, any notice to the contrary
\nnotwithstanding; but until such transfer on such books, the Company may treat
\nthe registered holder hereof as the owner for all purposes. The Company shall
\nkeep or cause to be kept, at its offices (or the office of its agents) in New
\nYork, New York, proper books in which the names and addresses of the initial
\nholder of this Warrant and all subsequent transferees shall be registered.
\n9. Warrant Exchangeable; Loss, Theft, Destruction, Etc. This Warrant is
\nexchangeable, upon the surrender hereof by the holder hereof at the office of
\nthe Company referred to in paragraph 1, for a new Warrant or new Warrants of
\nlike tenor representing in the aggregate the right to subscribe for and purchase
\nthe number of Common Shares which may be subscribed for and purchased hereunder,
\neach such new Warrant to represent the right to subscribe for and purchase such
\nnumber of Common Shares as shall be designated by such holder hereof at the time
\nof such surrender. Upon receipt of evidence satisfactory to the Company of the
\nloss, theft, destruction or mutilation of this Warrant and, in the case of any
\nsuch loss, theft or destruction, upon delivery of a bond or indemnity
\nsatisfactory to the Company, or, in the case of any such mutilation, upon
\nsurrender or cancellation of this Warrant, the Company will issue to the holder
\nhereof a new Warrant of like tenor, in lieu of this Warrant, representing the
\nright to subscribe for and purchase the number of Common Shares which may be
\nsubscribed for and purchased hereunder. 10. Limitations on Transferability;
\nSecurities Act Compliance, Registration. 10A. Definitions. As used in this
\nparagraph 10, the following definitions shall be applicable: “Commission”
\nshall mean the Securities and Exchange Commission or any other federal agency at
\nthe time administering the federal securities laws. “Company Securities” means
\n(i) shares of common stock of the Company, (ii) shares of preferred stock of the
\nCompany, (iii) warrants, rights, or options (within the meaning of Treasury
\nRegulation \u00a71.382-2T(h)(4)(v)) to purchase stock of the Company, and (iv) any
\nother interests that would be treated as “stock” of the Company pursuant to
\nTreasury Regulation \u00a71.382-2T(f)(18). “Maximum Includable Shares” shall mean
\nthe maximum number of Common Shares (including, for this purpose, the number of
\nCommon Shares issuable upon exercise of Restricted Securities for which
\nregistration is requested pursuant to paragraph 10E(1) to be offered by selling
\nsecurity holders in a firm commitment underwriting that the managing underwriter
\nor underwriters (the “Managing Underwriters”) of the proposed offering, in their
\ngood faith judgment, deem it practicable and consistent with the best interests
\nof the Company to offer and sell, upon the effectiveness of the Registration
\nStatement. In making such judgment, the Managing Underwriters shall take into
\naccount, among other things, (i) any adverse effect on the price or terms upon
\nwhich the securities included in such Registration Statement for the account of
\nthe Company may be sold, and (ii) any adverse effect on the price or terms upon
\nwhich all securities included in such Registration Statement for the account of
\nthe Company and the selling security holders may be sold. “NASD” shall mean
\nthe National Association of Securities Dealers, Inc.
\n 7<\/p>\n
“Prospectus” shall mean any preliminary prospectus and final prospectus (as
\nsuch may be amended or supplemented) which constitutes Part I of a Registration
\nStatement filed with the Commission. “Registration Statement” shall mean the
\nform and documents required to be filed by an issuer in connection with the
\nregistration of securities of such issuer under the Securities Act.
\n“Restricted Securities” shall mean (i) this Warrant (and any warrant or warrants
\nissued in exchange therefor or in replacement thereof) and (ii) the Common
\nShares issued or issuable upon exercise of this Warrant or such other warrants;
\nthe certificates for all of which bear the legend referred to in paragraph 10B.
\n “Restricted Shares” shall mean the Common Shares issued or issuable upon
\nexercise of Restricted Securities bearing the legend referred to in paragraph
\n10B. “Securities Act” shall mean the Securities Act of 1933, as amended from
\ntime to time. “Seller” shall mean each holder of Restricted Securities or
\nRestricted Shares for whom securities are included or proposed to be included in
\na Registration Statement filed or proposed to be filed by the Company.
\n“transfer” shall mean any sale, pledge, assignment, encumbrance or disposition
\nof any Restricted Securities or of any part thereof or interest therein,
\nincluding an offer to transfer, whether or not such transfer would constitute a
\n“sale” as that term is defined in section 2(3) of the Securities Act. For
\npurposes of obtaining approval by the Board of Directors pursuant to Part III of
\nArticle Fourth of the Company153s Certificate of Incorporation, “Transfer” shall
\nmean any direct or indirect sale, transfer, assignment, conveyance, pledge, or
\nother disposition. A Transfer also shall include the creation or grant of an
\noption (within the meaning of Treasury Regulation \u00a71.382-2T(h)(4)(v)). A
\nTransfer shall not include an issuance or grant of Company Securities by the
\nCompany. “Treasury Regulation \u00a71.382-2T” means the temporary income tax
\nregulations promulgated under Section 382, and any successor
\nregulations. References to any subsection of such regulations include
\nreferences to any successor subsection thereof. 10B. Legends. (1) Unless and
\nuntil removed as provided in the next paragraph, this Warrant (and any Warrants
\nissued in exchange herefor or replacement hereof) and each certificate
\nevidencing Common Shares issued upon exercise of this Warrant shall bear a
\nlegend in substantially the following form: In the case of this Warrant: “The
\ntransfer of this Warrant and the Common Shares issuable upon exercise hereof is
\nsubject to certain restrictions contained in paragraph 10 hereof, and the holder
\nof this Warrant by acceptance hereof agrees to be bound by such restrictions.”
\nIn the case of Common Shares: “The transfer of this certificate and the shares
\nevidenced hereby is subject to certain restrictions contained in paragraph 10 of
\na Common Share Purchase Warrant dated March 7, 2011, and the holder of this
\ncertificate by acceptance hereof agrees to be bound by such restrictions. A
\ncopy of such Warrant is on file with the Secretary of the Company.” The
\nCompany may issue such “stop transfer” instructions to its transfer agent with
\nrespect to all or any of the Restricted Securities as it deems appropriate to
\nprevent any violation of the provisions of this paragraph 10 or of the
\nSecurities Act.
\n 8<\/p>\n
<\/p>\n
(2) The Company shall issue a new Warrant or certificate which does not
\ncontain the legend set forth in paragraph 10B(1) if (i) the shares represented
\nthereby are sold pursuant to a Registration Statement (including a current
\nProspectus) which has become and is effective under the Securities Act or
\n(ii) the staff of the Commission shall have issued a “no action” letter to the
\neffect that, or counsel acceptable to the Company shall have rendered its
\nopinion (which opinion shall be acceptable to the Company) that, such securities
\nmay be sold without registration under the Securities Act. (3) At the time of
\nany exercise of this Warrant, the Company may require, as a condition of
\nallowing such exercise, that the holder of this Warrant furnish to the Company
\nsuch information as, in the opinion of the Company, is reasonably necessary in
\norder to establish that such exercise is made in compliance with the
\nregistration requirements of the Securities Act or may be made without
\nregistration under the Securities Act, including without limitation a written
\nstatement that such holder is acquiring the security receivable upon such
\nexercise for its own account for investment and not with a view to the
\ndistribution thereof or with any present intention of selling any thereof;
\nprovided, however, that nothing contained in this paragraph 10B(3) shall impair
\nthe registration obligations of the Company specified in the succeeding
\nprovisions of this paragraph 10. (4) Unless and until removed as provided in
\nPart III of Article Fourth of the Company153s Certificate of Incorporation, this
\nWarrant (and any Warrants issued in exchange herefor or replacement hereof) and
\neach certificate evidencing Common Shares issued upon exercise of this Warrant
\nshall bear a legend in substantially the following form: In the case of this
\nWarrant: “The transfer of this Warrant and the Common Shares issuable upon
\nexercise hereof is subject to restrictions pursuant to Part III of Article
\nFourth of the Certificate of Incorporation of Leucadia National Corporation
\nreprinted in its entirety on Appendix 1 of this Warrant.” In the case of
\nCommon Shares: “The transfer of the Securities represented hereby is subject to
\nrestrictions pursuant to Part III of Article Fourth of the Certificate of
\nIncorporation of Leucadia National Corporation reprinted in its entirety on the
\nback of this Certificate.” 10C. Notice of Transfer; Opinion of Counsel. If a
\nholder of Restricted Securities proposes to transfer all or a portion of such
\nsecurities, such holder shall give the Company written notice specifying the
\nsecurities involved and describing the manner in which the proposed transfer is
\nto be made, together with either (i) an opinion satisfactory to the Company or
\ncounsel satisfactory to the Company stating in substance that registration under
\nthe Securities Act is not required with respect to such transfer or (ii) a “no
\naction” letter from the staff of the Commission with respect to such
\ntransfer. Following delivery of a notice accompanied by an opinion of counsel
\nto the effect set forth above or by such a “no action” letter, such holder shall
\nhave the right to transfer, in a manner consistent with its notice to the
\nCompany, the Restricted Securities proposed to be transferred, provided that the
\nholder has complied with the provisions of Part III of Article Fourth of the
\nCompany153s Certificate of Incorporation, if applicable, unless the Company
\ndetermines within 20 days following such delivery that registration under the
\nSecurities Act is required with respect to such proposed transfer or that such
\ntransfer would violate the provisions of such Part III of Article Fourth. Such
\nholder shall cooperate with the Company for the purpose of permitting such
\ndetermination to be made, including, to the extent deemed necessary by the
\nCompany, procuring and delivering to the Company an investment letter signed by
\nthe proposed transferee. 10D. Demand Registration. (1) Upon a written demand
\nby a holder or holders of at least 200,000 Restricted Shares (or such other
\nequivalent number of shares as may result from a reclassification, subdivision
\nor combination of Common Shares into a greater or smaller number of shares) that
\nnot
\n 9<\/p>\n
<\/p>\n
less than 200,000 of such Restricted Shares be registered (which demand shall
\nspecify its intended method of disposition), the Company shall promptly give
\nwritten notice of such demand to all other holders of Restricted Securities and
\nshall use its best efforts to effect the registration under the Securities Act
\nof: (a) the Restricted Shares which the Company has been demanded to register
\npursuant to this paragraph 10D for a disposition in accordance with the proposed
\nmethod of disposition described in said demand; and (b) all other Restricted
\nShares the holders of which shall have made written request (stating the
\nproposed method of disposition of such securities by the prospective Seller) to
\nthe Company for the registration thereof within 10 days after giving of such
\nwritten notice by the Company, all to the extent requisite to permit the
\ndisposition (in accordance with the proposed methods thereof, as aforesaid, as
\nlong as such proposed methods are consistent with the original demand) by the
\nprospective Seller or Sellers of such securities. (2) The Company153s obligation
\nto effect a registration under this paragraph is subject to the conditions that:
\n (a) The Executive and his transferees shall not be entitled to more than a
\ntotal of (i) one registration statement on Form S-1 (or some other comparable
\nform of registration statement) and (ii) two separate registration statements on
\nForm S-2, S-3 or other comparable short form of registration statement;
\nprovided, however, that no such Form S-1 or Form S-2, S-3 or comparable short
\nform need be filed until the earlier of the 90th day after the end of any fiscal
\nyear of the Company or the date on which the Company153s audited financial
\nstatements for such fiscal year are available, nor shall more than one such form
\nbe required to be filed in any 12-month period. (b) The Company shall not be
\nrequired to have a special audit of its financial statements for inclusion in
\nsuch Registration Statement: but if the rules and regulations of the Commission
\notherwise require such a special audit, the Company may delay the filing or
\neffectiveness of the Registration Statement until such time as the Company
\nreceives its audited financial statements for its then current fiscal year.
\n(c) The Company shall not be required to effect any registration in accordance
\nwith paragraph 10D(1) hereof if (i) in the written opinion of counsel to the
\nCompany such registration may not be appropriately effected in light of any
\nmaterial pending transaction of the Company or its subsidiaries, or (ii) any
\nregistration of any underwritten public offering of securities made on behalf of
\nthe Company has become effective within ninety (90) days prior to the
\nanticipated effective date of any registration requested pursuant to paragraph
\n10D(1) hereof. 10E. Incidental Registration. (1) Whenever the Company
\nproposes to file on its behalf and\/or on behalf of any of its security holders a
\nRegistration Statement under the Securities Act on Forms S-1, S-2 or S-3 (other
\nthan in connection with a registration of securities on Form S-8) (or on any
\nother form for the general registration of securities to be sold for cash) with
\nrespect to its Common Shares (as defined in Section 3(a)(11) of the Securities
\nExchange Act of 1934), the Company shall give written notice to each holder of
\nRestricted Securities at least 30 days before the filing with the Commission of
\nsuch Registration Statement, which notice shall set forth the intended method of
\ndisposition of the securities proposed to be registered. The notice shall offer
\nto include in such filing such number of Restricted Shares as such holders may
\nrequest subject to the limitation in paragraph 10E(2). Each holder desiring to
\nhave Restricted Shares registered under this paragraph 10E shall (i) advise the
\nCompany in writing within 20 days after the date of receipt of such offer from
\nthe Company, setting forth the number of Restricted Shares for which
\nregistration is
\n 10<\/p>\n
requested and the intended method of disposition thereof, and (ii) deliver to
\nthe Company a letter from counsel to such holder to the effect that registration
\nunder the Securities Act is or may be required. The Company shall thereupon
\ninclude in such filing, subject to the limitation in paragraph 10E(2), the
\nRestricted Shares proposed to be offered for sale by each Seller making such
\nrequest in accordance with its intended method of disposition as stated in such
\nrequest, and shall use its best efforts to effect registration under the
\nSecurities Act of such securities. (2) The Company shall, as soon as
\npracticable after the expiration of the 20-day period provided for in paragraph
\n10E(1), furnish each Seller with a written statement from its managing or
\nprincipal underwriter, if any, as to the Maximum Includable Shares. If (x) the
\ntotal number of Common Shares which the Company proposes to include in such
\nRegistration Statement plus (y) the total number of Restricted Shares for which
\nregistration has been requested pursuant to paragraph 10E(1) is in excess of the
\nMaximum Includable Shares, the number of shares (including Restricted Shares) to
\nbe included in such underwritten offering shall be determined as follows:
\n(a) No reduction shall be made in the number of shares to be registered for the
\naccount of the Company. (b) Each Seller of Restricted Shares may include in
\nthe number of Common Shares comprising the balance of the Maximum Includable
\nShares that number of Common Shares determined by multiplying (i) the balance of
\nsuch Maximum Includable Shares by (ii) a fraction the numerator of which shall
\nbe the number of Common Shares then owned by such Seller (adjusted to give
\neffect to exercise of all warrants and conversion of all convertible securities
\nthen owned by such Seller) and the denominator of which is the number of Common
\nShares (as similarly adjusted as to all Sellers) owned by all Sellers.
\n10F. General. If and whenever the Company is required by the provisions of this
\nparagraph 10 to use its best efforts to effect the registration of any of its
\nsecurities under the Securities Act, the Company shall, as expeditiously as
\npossible: (1) prepare and file with the Commission a Registration Statement
\nwith respect to such securities and use its best efforts to cause such
\nRegistration Statement to become and remain effective; (2) prepare and file
\nwith the Commission such amendments and supplements to such Registration
\nStatement and the Prospectus used in connection therewith as may be necessary to
\nkeep such Registration Statement effective for the shorter of 30 days or the
\ncompletion of the distribution and to comply with the provisions of the
\nSecurities Act with respect to the disposition of all securities covered by such
\nRegistration Statement in accordance with the intended method of disposition by
\nthe Seller or Sellers thereof set forth in such Registration Statement for such
\nperiod; (3) furnish to each Seller such number of copies of the Prospectus
\ncontained in such Registration Statement (including each preliminary
\nprospectus), in conformity with the requirements of the Securities Act, and such
\nother documents as such Seller may reasonably request in order to facilitate the
\ndisposition of the securities owned by such Seller; (4) use its best efforts
\nto register or qualify the Restricted Shares covered by such Registration
\nStatement under the securities or blue sky laws of such jurisdictions as the
\nSellers shall reasonably request, and do any and all other acts and things which
\nmay be necessary or advisable to enable the Sellers to consummate the
\ndisposition in such jurisdictions of such Restricted Shares during the period
\nprovided in paragraph 10F(2); and (5) (a) notify each Seller of any
\nRestricted Shares covered by such Registration Statement, at any time when a
\nProspectus relating thereto is required to be delivered under the
\n 11<\/p>\n
<\/p>\n
Securities Act, of the happening of any event as a result of which the
\nProspectus contained in such Registration Statement, as then in effect, includes
\nany untrue statement of a material fact or omits to state any material fact
\nrequired to be stated therein or necessary to make the statements therein not
\nmisleading in the light of the circumstances then existing, and (b) at the
\nrequest of any such Seller prepare and furnish to such Seller a reasonable
\nnumber of copies of any supplement to or amendment of such Prospectus that may
\nbe necessary so that, as thereafter delivered to the purchasers of such shares,
\nsuch Prospectus shall not include any untrue statement of a material fact or
\nomit to state any material fact required to be stated therein or necessary to
\nmake the statements therein not misleading in the light of the circumstances
\nthen existing. 10G. Expenses. If and whenever the Company is required by the
\nprovisions of this paragraph 10 to effect the registration of any Restricted
\nShares under the Securities Act, the Company shall pay all expenses arising out
\nof or related to the preparation, filing, amendment and supplementing of a
\nRegistration Statement, including, without limitation, all legal and accounting
\nfees, Commission filing fees, NASD filing fees, printing costs, registration or
\nqualification fees and expenses to comply with “blue sky” or other state
\nsecurities laws, the fees of other experts and any reasonable expenses or other
\ncompensation paid to the underwriters (other than those required by the next
\nsucceeding sentence to be paid by the Sellers). Each Seller shall be required
\nto bear underwriting commissions and discounts and transfer taxes, if any,
\npayable in connection with the sale of Restricted Shares.
\n10H. Indemnification. In the event of the registration of any Restricted Shares
\nunder the Securities Act pursuant to the provisions of this paragraph 10, the
\nCompany agrees to indemnify and hold harmless the Seller of such Restricted
\nShares, each underwriter, if any, of such Restricted Shares, and each person who
\ncontrols such Seller or any such underwriter within the meaning of section 15 of
\nthe Securities Act, from and against any and all losses, claims, damages or
\nliabilities, joint or several, to which such Seller, underwriter or controlling
\nperson may become subject under the Securities Act or the common law or
\notherwise, insofar as such losses, claims, damages or liabilities (or actions in
\nrespect thereof) arise out of or are based upon any untrue statement or alleged
\nuntrue statement of any material fact contained in any Registration Statement
\nunder which such Restricted Shares were registered under the Securities Act, or
\nany Prospectus or preliminary prospectus contained therein, or any amendment or
\nsupplement thereto, or arise out of or are based upon the omission or alleged
\nomission to state therein a material fact required to be stated therein or
\nnecessary to make the statements therein not misleading; and will reimburse such
\nSeller, each such underwriter, and each such controlling person for any legal or
\nany other expenses reasonably incurred by such Seller, underwriter or
\ncontrolling person in connection with investigating or defending any such loss,
\nclaim, damage, liability or action; provided, however, that the Company will not
\nbe liable in any such case to the extent that any such loss, claim, damage or
\nliability arises out of or is based upon an untrue statement or alleged untrue
\nstatement or omission or alleged omission made in such Registration Statement,
\nsuch Prospectus or preliminary prospectus or such amendment or supplement in
\nreliance upon and in conformity with written information furnished to the
\nCompany by such Seller, underwriter or controlling person specifically for use
\nin preparation thereof; and provided further, however, that this indemnity
\nagreement with respect to any preliminary prospectus shall not inure to the
\nbenefit of any such underwriter (or any person who so controls such underwriter)
\nfor any such loss, claim, damage, liability or action asserted by a person who
\npurchased any Restricted Shares from such underwriter if a copy of the final
\nProspectus was not delivered or given to such person by such underwriter at or
\nprior to the written confirmation of the sale to such person. In the event of
\nthe registration of any Restricted Shares under the Securities Act pursuant to
\nthe provisions hereof, each Seller of Restricted Shares agrees to indemnify and
\nhold harmless and to use its best efforts to cause each underwriter, if any, of
\nsuch Restricted Shares and each person who controls such Seller or any such
\nunderwriter within the meaning of section 15 of the Securities Act, to indemnify
\nand hold harmless the Company, each person who controls the Company within the
\nmeaning of section 15 of the Securities Act, each of its officers who signs the
\nRegistration Statement, and each director of the Company from and against any
\nand all losses, claims, damages or liabilities, joint or several, to which the
\nCompany, such controlling person or any such officer or director may become
\nsubject under the Securities Act or the common law or otherwise, insofar as such
\nlosses, claims, damages or liabilities (or action in
\n 12<\/p>\n
<\/p>\n
respect thereof) arise out of or are based upon any untrue statement or
\nalleged untrue statement of any material fact contained in any Registration
\nStatement under which such Restricted Shares were registered under the
\nSecurities Act, any Prospectus or preliminary prospectus contained therein, or
\namendment or supplement thereto, or arise out of or are based upon the omission
\nor alleged omission to state therein a material fact required to be stated
\ntherein or necessary to make the statements therein not misleading, which untrue
\nstatement or alleged untrue statement or omission or alleged omission was made
\ntherein in reliance upon and in conformity with, written information furnished
\nto the Company by such Seller, controlling person or underwriter, specifically
\nfor use in connection with the preparation thereof; and will reimburse the
\nCompany, such controlling person and each such officer and director for any
\nlegal or other expenses reasonably incurred by them in connection with
\ninvestigating or defending any such loss, claim, damage, liability or action.
\nPromptly after receipt by an indemnified party of notice of the commencement of
\nany action such indemnified party will, if a claim in respect thereof is to be
\nmade against an indemnifying party, give written notice to such indemnifying
\nparty of the commencement thereof, but the omission so to notify the
\nindemnifying party will not relieve it from any liability which it may have to
\nany indemnified party otherwise than pursuant to the provisions of this
\nparagraph 10H. In case any such action is brought against any indemnified
\nparty, and it notifies any indemnifying party of the commencement thereof, the
\nindemnifying party will be entitled to participate in, and to the extent that it
\nmay wish, jointly with any other indemnifying party similarly notified, to
\nassume the defense thereof, with counsel satisfactory to such indemnified party,
\nand after notice from the indemnifying party to such indemnified party of its
\nelection so to assume the defense thereof, the indemnifying party will not be
\nliable to such indemnified party for any legal or other expenses subsequently
\nincurred by such indemnified party in connection with the defense thereof, other
\nthan the reasonable cost of investigation. 10I. Transferees. In the event
\nthat this Warrant or any of the Restricted Shares purchased upon exercise of
\nthis Warrant shall at any time be transferred by the holder hereof or thereof
\nother than pursuant to an effective Registration Statement, the rights herein
\nconferred shall extend to the transferee of such securities. 11. Descriptive
\nHeadings and Governing Law. The descriptive headings of the several paragraphs
\nof this Warrant are inserted for convenience only and do not constitute a part
\nof this Warrant. This Warrant is being delivered and is intended to be
\nperformed in the State of New York and shall be construed and enforced in
\naccordance with, and the rights of the parties shall be governed by, the law of
\nsuch State. IN WITNESS WHEREOF, LEUCADIA NATIONAL CORPORATION has caused this
\nWarrant to be signed by its duly authorized officers under its corporate seal,
\nand this Warrant to be dated May 16, 2011. <\/p>\n
| <\/td>\n | \n LEUCADIA NATIONAL CORPORATION<\/p>\n<\/td>\n<\/tr>\n | |||||||||||||||||||||
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| \n ATTEST:<\/p>\n<\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | ||||||||||||||||||||
| <\/td>\n | \n Secretary<\/p>\n<\/td>\n | <\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n <\/p>\n 13<\/p>\n \n SUBSCRIPTION AGREEMENT Date __________________, 20__
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