Exhibit 10.B
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement, dated as of ____________, 2001, by and among
The FINOVA Group Inc., a Delaware corporation ("Company") and Leucadia National
Corporation, a New York Corporation ("Purchaser").
WITNESSETH:
WHEREAS, Company and Purchaser have entered into that certain Securities
Purchase Agreement, dated as of December 20, 2000 (the "Purchase Agreement"),
pursuant to which Company has agreed to issue and sell to Purchaser, and
Purchaser has agreed to purchase from Company, shares of Series B Convertible
Preferred Stock, $0.01 par value per share ("Series B Preferred Stock"); and
WHEREAS, pursuant to the Purchase Agreement, Purchaser has agreed to act as
a standby purchaser from Company of up to four hundred thousand shares of
Company's Series C Convertible Preferred Stock, $0.01 par value per share (the
shares of such preferred stock so acquired by Purchaser being referred to herein
as the "Series C Preferred Stock" and together with the Series B Preferred
Stock, the "Convertible Preferred Stock").
WHEREAS, in order to induce Purchaser to enter into the Purchase Agreement
and to purchase or agree to purchase the shares of Convertible Preferred Stock,
Company has agreed to provide registration rights with respect thereto;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in the
Purchase Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of New York.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Conversion Shares" shall mean shares of Common Stock issued upon
conversion of shares of Convertible Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean the holder of Conversion Shares or shares of
Convertible Preferred Stock.
"Majority Holders" shall mean Holders holding at the time, shares of
Convertible Preferred Stock or Conversion Shares representing more than 50% of
the sum of (x) all then outstanding Conversion Shares and (y) all shares of
Common Stock issuable to the holders of then-outstanding Convertible Preferred
Stock upon the conversion thereof.
"NASD" shall mean the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"Registrable Securities" shall mean the shares of Convertible Preferred
Stock owned by Purchaser or its permitted transferees, all Conversion Shares or
shares of Convertible Preferred Stock or Common Stock hereafter acquired by
Purchaser or which Purchaser hereafter obtains the right to acquire pursuant to
the terms of the Purchase Agreement or otherwise. As to any particular
Registrable Securities held by any Holder other than Purchaser, such securities
shall cease to constitute Registrable Securities when (A) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with the plan of distribution contemplated by the registration
statement, (B) such securities shall have been sold in satisfaction of all
applicable conditions to the resale provisions of Rule 144 under the Securities
Act (or any successor provision thereto), (C) all Registrable Securities held by
such Holder may be sold pursuant to Rule 144(k) of the Securities Act, or (D)
such securities shall have ceased to be issued and outstanding.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. REQUIRED REGISTRATION. After receipt of a written request from the
holders of Registrable Securities requesting that Company effect a registration
under the Securities Act covering at least 20% of the Registrable Securities
initially outstanding or having a minimum anticipated aggregate offering price
of $25,000,000, and specifying the intended method or methods of disposition
thereof, Company shall promptly notify all Holders in writing of the receipt of
such request and each such Holder, in lieu of exercising its rights under
Section 3 may elect (by written notice sent to Company within 10 Business Days
from the date of such Holder's receipt of the aforementioned Company's notice)
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to have Registrable Securities included in such registration thereof pursuant to
this Section 2. Thereupon Company shall, as expeditiously as is possible, use
its commercially reasonable efforts to effect the registration under the
Securities Act of all shares of Registrable Securities which Company has been so
requested to register by such Holders for sale, all to the extent required to
permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
however, that Company shall not be required to effect more than three (3)
registrations of any Registrable Securities pursuant to this Section 2.
3. INCIDENTAL REGISTRATION. If Company at any time proposes to file on its
behalf and/or on behalf of any of its security holders (the "demanding security
holders") a Registration Statement under the Securities Act on any form (other
than a Registration Statement on Form S-4 or S-8 or any successor form for
securities to be offered in a transaction of the type referred to in Rule 145
under the Securities Act or to employees of Company pursuant to any employee
benefit plan, respectively) for the general registration of securities, it will
give written notice to all Holders at least 15 days before the initial filing
with the Commission of such Registration Statement, which notice shall set forth
the intended method of disposition of the securities proposed to be registered
by Company. The notice shall offer to include in such filing the aggregate
number of shares of Registrable Securities as such Holders may request.
Each Holder desiring to have Registrable Securities registered under this
Section 3 shall advise Company in writing within 10 days after the date of
receipt of such offer from Company, setting forth the amount of such Registrable
Securities for which registration is requested. Company shall thereupon include
in such filing the number of shares of Registrable Securities for which
registration is so requested, subject to the next sentence, provided that
Company may in its sole discretion determine to abandon any such registration.
If the managing underwriter of a proposed public offering shall advise Company
in writing that, in its opinion, the distribution of the Registrable Securities
requested to be included in the registration concurrently with the securities
being registered by Company or such demanding security holder would materially
and adversely affect the distribution of such securities by Company or such
demanding security holder, then all selling security holders (including the
demanding security holder who initially requested such registration) shall
reduce the amount of securities each intended to distribute through such
offering on a pro rata basis. Except as otherwise provided in Section 5, all
expenses of such registration shall be borne by Company.
4. REGISTRATION PROCEDURES. If Company is required by the provisions of
Section 2 or 3 to use its commercially reasonable efforts to effect the
registration of any of its securities under the Securities Act, Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities and use its commercially reasonable efforts to cause
such Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof, but not
to exceed 180 days;
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(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such Registration Statement until the
earlier of such time as all of such securities have been disposed of in a public
offering or the expiration of 180 days;
(c) furnish to such selling security holders such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its commercially reasonable efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
each holder of such securities shall request (PROVIDED, HOWEVER, that Company
shall not be obligated to qualify as a foreign corporation to do business under
the laws of any jurisdiction in which it is not then qualified or to file any
general consent to service or process), and do such other reasonable acts and
things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such Registration
Statement;
(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2, on the date that such shares of
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration or, if such Registrable Securities are not being sold through
underwriters, on the date that the Registration Statement with respect to such
shares of Registrable Securities becomes effective, (1) an opinion, dated such
date, of the independent counsel representing Company for the purposes of such
registration, addressed to the underwriters, if any, and if such Registrable
Securities are not being sold through underwriters, then to the Holders making
such request, in customary form and covering matters of the type customarily
covered in such legal opinions; and (2) a comfort letter dated such date, from
the independent certified public accountants of Company, addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the Holder making such request and, if such
accountants refuse to deliver such letter to such Holder, then to Company, in a
customary form and covering matters of the type customarily covered by such
comfort letters and as the underwriters or such Holder shall reasonably request;
(f) enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities; and
(g) otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
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security holders, as soon as reasonably practicable, but not later than 18
months after the effective date of the Registration Statement, an earnings
statement covering the period of at least 12 months beginning with the first
full month after the effective date of such Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
It shall be a condition precedent to the obligation of Company to take any
action pursuant to this Agreement in respect of the securities which are to be
registered at the request of any Holder that such Holder shall (i) furnish to
Company such information regarding the securities held by such Holder and the
intended method of disposition thereof as Company shall reasonably request and
as shall be required in connection with the action taken by Company and (ii) in
connection with an underwritten offering, enter into customary agreements
(including an underwriting agreement and a custody agreement, each in customary
form, and a lock-up agreement with respect to such holder's equity securities of
Company as may be requested by the managing underwriter).
5. EXPENSES. All expenses incurred in complying with this Agreement,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for Company, the reasonable fees and expenses of
counsel for the selling security holders (selected by those holding a majority
of the securities being registered), expenses of any special audits incident to
or required by any such registration and expenses of complying with the
securities or blue sky laws of any jurisdiction pursuant to Section 4(d), shall
be paid by Company, except that:
(a) all such expenses in connection with any amendment or supplement to the
Registration Statement or prospectus filed more than 180 days after the
effective date of such Registration Statement because any Holder has not
effected the disposition of the securities requested to be registered shall be
paid by such Holder; and
(b) Company shall not be liable for any fees, discounts or commissions to
any underwriter or any fees or disbursements of counsel for any underwriter in
respect of the securities sold by such Holder.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any Registrable Securities under
the Securities Act pursuant to this Agreement, Company shall indemnify and hold
harmless the holder of such Registrable Securities, such holder's directors and
officers, and each other person (including each underwriter) who participated in
the offering of such Registrable Securities and each other person, if any, who
controls such holder or such participating person within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such holder or any such director or officer or participating
person or controlling person may become subject under the Securities Act or any
other statute or at common law, insofar as such losses, claims, damages or
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liabilities (or actions in respect thereof) arise out of or are based upon (i)
any alleged untrue statement of any material fact contained, on the effective
date thereof, in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse such holder or such director, officer or participating person or
controlling person for any legal or any other expenses reasonably incurred by
such holder or such director, officer or participating person or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any actual or alleged untrue statement or actual
or alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Company by such holder specifically for use
therein or (in the case of any registration pursuant to Section 2) so furnished
for such purposes by any underwriter. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such holder
or such director, officer or participating person or controlling person, and
shall survive the transfer of such securities by such holder.
(b) Each Holder, by acceptance hereof, agrees to indemnify and hold
harmless Company, its directors and officers and each other person, if any, who
controls Company within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which Company or any such
director or officer or any such person may become subject under the Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon information in writing provided to Company by such Holder specifically for
use in the following documents and contained, on the effective date thereof, in
any Registration Statement under which securities were registered under the
Securities Act at the request of such holder, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto but
in an amount not to exceed the net proceeds received by such Holder in the
offering.
(c) If the indemnification provided for in this Section 6 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
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of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The liability of any holder of Registrable
Securities hereunder shall not exceed the net proceeds received by it in the
offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
7. LISTING ON SECURITIES EXCHANGE. Company will, at its expense, list on
the NYSE (or such other principal exchange on which it lists its Common Stock),
maintain and, when necessary, increase such listing of, all shares of Common
Stock issued or, to the extent permissible under the applicable securities
exchange rules, issuable upon the exercise of this Agreement so long as any
shares of Common Stock shall be so listed.
8. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding the other
provisions of this Agreement:
(a) Company shall not be obligated to register the Registrable Securities
of any Holder if, in the opinion of counsel to Company reasonably satisfactory
to the Holder and its counsel (or, if the Holder has engaged an investment
banking firm, to such investment banking firm and its counsel), the sale or
other disposition of all of such Holder's Registrable Securities, in the manner
proposed by such Holder (or by such investment banking firm), may be effected
without registering such Registrable Securities under the Securities Act in
reliance upon Rule 144(k) under the Securities Act; and
(b) Company shall not be obligated to register the Registrable Securities
of any Holder pursuant to Section 2 if Company has had a registration statement,
under which such Holder had a right to have its Registrable Securities included
pursuant to Section 2 or 3, declared effective within one year prior to the date
of the request pursuant to Section 2.
(c) Company shall have the right to delay the filing or effectiveness of a
registration statement required pursuant to Section 2 hereof during one or more
periods aggregating not more than 180 days in any twelve-month period in the
event that (i) Company would, in accordance with the advice of its counsel, be
required to disclose in the prospectus information not otherwise then required
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by law to be publicly disclosed and (ii) in the judgment of Company's Board of
Directors, there is a reasonable likelihood that such disclosure, or any other
action to be taken in connection with the prospectus, would materially and
adversely affect any existing or prospective material business situation,
transaction or negotiation or otherwise materially and adversely affect Company.
9. SELECTION OF MANAGING UNDERWRITERS. The managing underwriter or
underwriters for any offering of Registrable Securities to be registered
pursuant to Section 2 shall be selected by Purchaser and shall be reasonably
acceptable to Company.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Company will not hereafter enter into any
agreement with respect to its securities which is inconsistent with the rights
granted to the Holders in this Agreement.
(b) REMEDIES. Each Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
of this Agreement or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover reasonable attorneys'
fees in addition to any other available remedy.
(c) AMENDMENTS. This Agreement and all other Agreements may be amended or
modified with the written consent of Company and the Majority Holders.
(d) NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Agreement shall be sufficiently given or made if in
writing and either delivered in person with receipt acknowledged or sent by
registered or certified mail, return receipt requested, postage prepaid, or by
telecopy and confirmed by telecopy answerback, addressed as follows:
(i) If to any Holder, at its last known address appearing on the books
of Company maintained for such purpose.
(ii) If to Company, at
The FINOVA Group Inc.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Senior Vice-President,
General Counsel and Secretary
Facsimile No.: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or three Business Days after the same shall have been deposited in
the United States mail.
(e) RULE 144. So long as Company is subject to the reporting requirements
under the Exchange Act, it shall comply with such requirements so as to permit
sales of Registrable Securities by the Holders thereof pursuant to Rule 144
under the Securities Act.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto
including any person to whom Registrable Securities are transferred.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW; JURISDICTION. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York
without giving effect to the conflict of laws principles thereof.
(i) SEVERABILITY. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
(j) ENTIRE AGREEMENT. This Agreement, together with the Purchase Agreement,
represents the complete agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
THE FINOVA GROUP INC.
By:_________________________________
Name:
Title:
LEUCADIA NATIONAL CORPORATION
By:_________________________________
Name:
Title:
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