EXHIBIT 10.J
VOTING AGREEMENT
This VOTING AGREEMENT is entered into and shall be effective as of
August 21, 2001 (the "Effective Date"), by and among The FINOVA Group Inc., a
Delaware corporation (the "Company"), Berkadia LLC, a Delaware limited liability
company ("Berkadia"), Berkshire Hathaway Inc. a Delaware corporation
("Berkshire") and Leucadia National Corporation, a New York corporation
("Leucadia"). Berkadia, Berkshire and Leucadia are referred to herein
collectively as the "Stockholders" and individually as a "Stockholder."
Capitalized terms used herein but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Plan (as defined below).
W I T N E S S E T H:
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WHEREAS, the Company and certain of its subsidiaries filed for
reorganization under Chapter 11 of the United States Bankruptcy Code in the
United States Bankruptcy Court for the District of Delaware (the "Bankruptcy
Court"); and
WHEREAS, the Bankruptcy Court confirmed on August 10, 2001 the Third
Amended and Restated Joint Plan of Reorganization of the Company and such
subsidiaries (as amended, the "Plan");
WHEREAS, as part of the Plan, effective as of the Effective Date, the
Company (i) has issued shares of additional common stock of the Company having a
par value of $0.01 per share ("Common Stock") to the Stockholders as
contemplated by the Plan (ii) has issued 7.5% Senior Secured Notes Maturing 2009
with Contingent Interest due 2016 (the "Notes") to holders of Allowed general
unsecured Claims against FINOVA Capital Corporation, a subsidiary of the Company
("FINOVA Capital"), and holders of Allowed Interests in the Trust Originated
Preferred Securities issued by FINOVA Finance Trust, a subsidiary of the
Company, in accordance with the Plan and (iii) has granted the right to the
Official Committee of Creditors to designate one director of the initial Board
of Directors as it is comprised on the Effective Date (the "Initial Noteholder
Designee");
WHEREAS, Article XI of the Amended and Restated Bylaws of the Company
(attached hereto as "Exhibit A") establishes certain rights and procedures
relating to the designation following the Effective Date by holders of Notes,
excluding holders who are Affiliates of the Company (the "Unaffiliated
Noteholders"), of a nominee to the Board of Directors, who may be the Initial
Noteholder Designee or any successor thereto (the "Noteholder Director"), it
being understood that there will be only one Noteholder Director at any given
time.
NOW, THEREFORE, the Company and the Stockholders agree as follows for
the equal and ratable benefit of the Unaffiliated Noteholders:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms shall have the following
meanings:
"Affiliate" means with respect to any Person, any Person directly or
indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person. For purposes of this definition, a subsidiary of a
Person is an Affiliate of such Person and of each other subsidiary of that
Person.
"beneficially own" shall have the meaning set forth in Rule 13d-3
under the Exchange Act.
"Control" shall mean, as to any Person, the power to direct or cause
the direction of the management and policies of such person, whether through the
ownership of Voting Securities, by contract or otherwise. The terms
"Controlling Person", "Controlling" and "Controlled" by shall have correlative
meanings.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Person" shall mean and include an individual, a partnership, a
limited liability company, a joint venture, a corporation, a trust, an
unincorporated organization, a governmental or regulatory body or any
department, instrumentality or agency thereof, and any court.
ARTICLE II
NOTEHOLDER DIRECTOR
2.1 Election of Noteholder Director. For so long as Article XI of the
Amended and Restated Bylaws is in effect, subject to Section 2.2 and Article III
hereof, the Stockholders shall vote, and shall cause each Affiliate of the
Stockholders to vote, all of the shares of Common Stock then beneficially owned
by such Stockholder or such Affiliate of such Stockholder, to elect the
Noteholder Director at each election of the Board of Directors.
2.2 Non-election/Removal of Noteholder Director. In the event that (i)
the Board of Directors has advised the Stockholders that it has determined that
there exist grounds for removal for cause with respect to the Noteholder
Director, or (ii) the Board of Directors has advised the Stockholders that it
has determined that the Noteholder Director is not eligible to serve as a
director of a public company, then with respect to such Noteholder Director:
(a) the Stockholders shall not be required to vote, or cause their
respective Affiliates to vote, to elect such Noteholder Director in accordance
with Section 2.1(a) hereof; and
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(b) the Stockholders may vote, and may cause each Affiliate of the
Stockholders to vote, all of the shares of Common Stock then beneficially owned
by such Stockholder or such Affiliate of such Stockholder, to remove such
Noteholder Director by written consent (if permitted by the Amended and Restated
Bylaws of the Company) or at any stockholders' meeting called by the Board of
Directors for such purpose.
2.3 Replacement of Noteholder Director. For so long as Article XI of
the Amended and Restated Bylaws is in effect,
(a) if the Unaffiliated Noteholders determine to remove an incumbent
Noteholder Director with or without cause and so notify the Stockholders by
delivering to the Stockholders a certificate from the indenture trustee for the
Notes stating that the Unaffiliated Noteholders owning not less than a majority
in principal amount of the then outstanding Notes owned by Unaffiliated
Noteholders have determined to recommend removal of an incumbent Noteholder
Director, the Stockholders shall vote, and shall cause each Affiliate of the
Stockholders to vote, all of the shares of Common Stock then beneficially owned
by each such Stockholder or such Affiliate of such Stockholder, to remove such
Noteholder Director by written consent (if permitted by the Amended and Restated
Bylaws of the Company) or at any stockholders' meeting called by the Board of
Directors for such purpose; and
(b) Except as otherwise provided in this Agreement, neither the
Stockholders nor their Affiliates will vote any shares of Common Stock then
beneficially owned by such Stockholder or such Affiliate of such Stockholder in
favor of removal without cause of the Noteholder Director; it being understood
that this Agreement shall not limit the right of any Stockholder or any
Affiliate of a Stockholder, to vote any shares of Common Stock beneficially
owned by such Stockholder or such Affiliate of such Stockholder in favor of
removal with cause of the Noteholder Director.
ARTICLE III
MISCELLANEOUS
3.1 Termination.
(a) At such time as the provisions of Article XI of the Amended and
Restated Bylaws of the Company become null and void, this Agreement shall
automatically terminate and become null and void without any further action on
the part of any party.
(b) If, at any time, in the determination of any of the Stockholders,
the existence of this Agreement may adversely affect the ability of any of the
Stockholders (or their Affiliates) to achieve tax consolidation with the Company
or any other bona fide tax objective, the Stockholders shall have the right to
immediately terminate this Agreement upon written notice to the Company;
provided that, the Stockholders agree to provide the Unaffiliated Noteholders
with reasonable assurances, to the extent not inconsistent with applicable tax
laws and the tax objectives of any of the Stockholders, commensurate with the
provisions of this Agreement.
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3.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
3.3 Counterparts. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
3.4 Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware without reference to
choice of law principles, including all matters of construction, validity and
performance.
3.5 Severability; Enforcement. The invalidity of any portion hereof
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that
any court of the United States located in the State of Delaware or any Delaware
state court may enforce such restriction to the maximum extent permitted by law,
and each party hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
3.6 Further Assurances. Each party hereto shall execute and deliver
such additional documents as may be reasonably requested by another party to
consummate the transactions contemplated by this Agreement.
3.7 Transfer of Shares. If a Stockholder transfers all or
substantially all of the shares of Common Stock held by such Stockholder to
another Person (a "Transferee"), such Stockholder shall cause such Transferee to
be bound by the terms of this Agreement.
3.8 Entire Agreement. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter. There are no restrictions, promises, representations,
warranties, agreements or undertakings of any party hereto other than those set
forth or described herein or made hereunder.
3.9 Specific Performance; Consent to Jurisdiction.
(a) The parties hereto agree that the remedy at law for any breach of
this Agreement will be inadequate and that any party by whom this Agreement is
enforceable shall be entitled to specific performance in addition to any other
appropriate relief or remedy. Such party may, in its sole discretion, apply to
any court of the United States located in the State of Delaware or any Delaware
state court for specific performance or injunctive or such other relief as such
court may deem just and proper in order to enforce this Agreement or prevent any
violation hereof and, to the extent permitted by applicable law, each party
waives any objection to the imposition of such relief.
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(b) In addition, each of the parties hereto (i) consents to submit
itself to the personal jurisdiction of any Federal court located in the State of
Delaware or any Delaware state court in the event any dispute arises out of this
Agreement or any matter referred to herein, (ii) agrees that it will not attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (iii) agrees that it will not bring any action
relating to this Agreement or any matter referred to herein in any court other
than a Federal or state court sitting in the State of Delaware.
3.10 Headings; References. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Sections" shall be deemed to be references to Sections hereof unless
otherwise indicated.
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IN WITNESS WHEREOF, each of the parties hereto had caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
THE FINOVA GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
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BERKADIA LLC
By: BERKADIA MANAGEMENT LLC, its Manager
By: /s/ Xxxx X. Hamburg
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Name: Xxxx X. Hamburg
Title: President
BERKSHIRE HATHAWAY INC.
By: /s/ Xxxx X. Hamburg
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Name: Xxxx X. Hamburg
Title: Vice President
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Authorized Officer
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