Exhibit 4.C.2
AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED
RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this "Amendment") is dated as of
December 20, 2000, and is being entered into between The FINOVA Group Inc., a
Delaware corporation (the "Company"), and Xxxxxx Trust & Savings Bank, N.A., as
the rights agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement, dated as of February 15, 1992, as amended and restated as of
September 14, 1995, between the Company and Bank One, Arizona, N.A. (succeeded
by Xxxxxx Trust & Savings Bank, N.A.), as Rights Agent, as amended (the "Rights
Agreement");
WHEREAS, the Company and Leucadia National Corporation, a New York
corporation (the "Purchaser") are entering into that certain Securities Purchase
Agreement dated as of December 20, 2000 (the "Purchase Agreement").
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company has
agreed to issue and sell to the Purchaser, and the Purchaser has agreed to
purchase from Company, (i) shares of the Company's Series B Convertible
Preferred Stock, $0.01 par value per share (the "Series B Preferred Stock"),
which are convertible into shares of the Company's Common Stock, $0.01 par value
per share ("Common Shares"), pursuant to the terms of the Certificate of
Designation (as defined in the Purchase Agreement), and (ii) a warrant to
purchase shares of the Common Stock (the "Warrant");
WHEREAS, pursuant to the Purchase Agreement, promptly after the Purchaser's
acquisition of the Series B Preferred Stock and the Warrant, the Company will
make a rights offering, (the "Series C Rights Offering") pursuant to which
holders of Common Stock will be entitled to purchase shares of the Company's
Series C Convertible Preferred Stock, $0.01 par value per share (the "Series C
Preferred Stock") and, collectively with the Series B Preferred Stock, the
"Convertible Preferred Stock"), which are convertible into shares of Common
Stock, pursuant to the terms of the Certificate of Designation;
WHEREAS, the Purchaser has agreed to act as standby purchaser of up to $100
million of the consideration to be received in the Series C Rights Offering, and
as a result Purchaser may acquire shares of Series C Preferred Stock;
WHEREAS, the Company and the Purchaser desire that none of the execution or
delivery of the Purchase Agreement or the consummation of the transactions
contemplated by the Purchase Agreement, including the issuance of shares of the
Convertible Preferred Stock or the Warrant or the conversion into, or exercise
for, Common Shares, of the Convertible Preferred Stock or Warrant issued to the
Purchaser pursuant thereto, will cause (i) the rights issued pursuant to the
Rights Agreement to become exercisable, (ii) the Purchaser to be deemed an
"Acquiring Person" or (iii) the "Distribution Date" to occur upon any such
event.
WHEREAS, the parties hereto desire to enter into this Amendment to amend,
restate or add to the sections of the Rights Agreement as set forth herein; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Rights
Agreement may be amended in writing and upon execution by the Company and the
Rights Agent.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The first sentence of Section 1(a) of the Rights Agreement is hereby
amended and restated in its entirety and is replaced by the following
sentence:
"Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of 20% or more of the Common
Shares of the Company then outstanding, but shall not include The Dial
Corp, the Company, any Subsidiary (as such term is hereinafter defined) of
the Company, any employee benefit plan of the Company or any Subsidiary of
the Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan; provided, however, that Leucadia shall not be an
Acquiring Person as a result of (i) the execution and delivery by the
Company and Leucadia of the Leucadia Securities Purchase Agreement, the
issuance of the Warrant to Leucadia, or the consummation of the
transactions contemplated thereby, (ii) the acquisition by Leucadia of
Common Shares upon conversion of shares of the Series B Preferred Stock
acquired by Leucadia pursuant to the terms of the Leucadia Securities
Purchase Agreement, shares of the Series C Preferred Stock acquired by
Leucadia pursuant to the Series C Rights Offering, whether pursuant to its
commitment as standby purchaser or otherwise, or upon the exercise of the
Warrant, or (iii) the acquisition by Leucadia of additional Common Shares,
shares of Series B Preferred Stock or shares of Series C Preferred Stock,
at any time subsequent to the consummation of the transactions contemplated
by the Leucadia Securities Purchase Agreement.
2. Following definitions are added to Section 1 of the Agreement as follows,
and the existing definitions are hereby amended to redesignate them in
alphabetic order:
(i) "Leucadia" shall mean Leucadia National Corporation, a New York
corporation.
(n) "Series C Rights Offering" shall mean the offering of rights to
purchase the Company's Series C Preferred Stock, $0.01 par value, and the
agreement by which Leucadia will act as a standby purchaser for such
offering as contemplated by the Leucadia Securities Purchase Agreement.
(j) "Leucadia Securities Purchase Agreement" shall mean the Securities
Purchase Agreement dated as of December 20, 2000 between the Company and
Leucadia, as the same may be amended from time to time prior to the
issuance of the Series B Preferred Stock contemplated thereby.
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(r) "Warrant" shall mean the warrant to purchase Common Stock to be issued
by Company to Leucadia pursuant to the Leucadia Securities Purchase
Agreement, substantially in the form attached thereto.
3. Any other amendments to the Rights Agreement necessary to implement the
intention of the parties that the execution and delivery of the Purchase
Agreement, and the consummation of the transactions contemplated by the
Purchase Agreement, including the conversion into, or exercise for, Common
Shares, of the Convertible Preferred Stock or Warrant issued to the
Purchaser pursuant thereto, will cause (i) the rights issued pursuant to
the Rights Agreement to become exercisable, (ii) the Purchaser to be deemed
an "Acquiring Person" or (iii) the "Distribution Date" to occur upon any
such event are hereby incorporated into the terms of this Amendment.
4. Each of the parties hereto agrees to use reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws to consummate and make
effective this Amendment.
5. Except as modified herein, the Rights Agreement is affirmed by the parties
hereto in its entirety and shall remain in full force and effect.
6. This Amendment shall be effective as of the date hereof. Notwithstanding
the foregoing, if the Leucadia Securities Purchase Agreement is terminated,
this Amendment will be void and shall have no effect.
7. This Amendment may be executed in two or more counterparts, each of which
shall be an original and all of which, taken together, shall be deemed to
be one and the same instrument.
8. If any term, provision, covenant or restriction of this Amendment is held
by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
9. This Amendment shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed
in accordance with the laws of such State applicable to contracts to be
made and performed entirely within such State.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the
Rights Agreement to be duly executed and delivered by their authorized
representatives as of the date first written above.
THE COMPANY: THE FINOVA GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
THE RIGHTS AGENT: XXXXXX TRUST & SAVINGS BANK, NA
By: /s/ Xxxxxx X. XxXxxx
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Name: Xxxxxx X. XxXxxx
Title: Vice President
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