Exhibit 10.I
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
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August 21, 2001, by and between The FINOVA Group Inc., a Delaware corporation
(the "Company"), and Berkadia LLC, a Delaware limited liability company
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("Berkadia").
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Recitals
WHEREAS, on June 13, 2001, the Company and eight of its subsidiaries
filed with the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") a Third Amended and Restated Joint Plan of Reorganization of
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Debtors Under Chapter 11 of the Bankruptcy Code (as amended, modified or
supplemented, the "Plan"), which was confirmed by order of the Bankruptcy Court
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on August 10, 2001;
WHEREAS, on the date hereof, the Company is issuing to Berkadia shares
of the common stock of the Company, par value $0.01 per share (the "Common
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Stock"), and may after the date hereof issue additional shares of Common Stock
to Berkadia, in each case as contemplated by the Plan;
WHEREAS, in connection with such issuance of Common Stock, and as a
condition to Berkadia's obligation to consummate the closing of the transactions
contemplated by the Plan, the Company has agreed to provide registration rights
applicable to the Registrable Securities (as defined below);
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties herein contained, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
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following meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
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promulgated under the Securities Exchange Act of 1934, as amended.
"Best Efforts" means the reasonable best efforts that a prudent person
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desirous of achieving a result would use in good faith in similar circumstances
to ensure that such result is achieved as expeditiously as can reasonably be
expected.
"Holder" means Berkadia or any Permitted Transferee who is the record
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holder of Registrable Securities.
"Permitted Transferee" means (a) Berkshire Hathaway Inc., a Delaware
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corporation ("Berkshire"), and/or Leucadia National Corporation, a New York
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corporation ("Leucadia"), or (b) any wholly-owned subsidiary of Berkshire or
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Leucadia.
"Registrable Securities" means the shares of Common Stock issued to
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Berkadia or any of its Affiliates as contemplated by the Plan, any stock or
other securities into which or for which such shares may hereafter be changed,
converted or exchanged, and any other securities issued to the Holders of such
shares (or such securities into which or for which such shares are so changed,
converted or exchanged) upon any reclassification, share combination, share
subdivision, share dividend, share exchange, merger, consolidation or similar
transactions or events, including, without limitation, according to the terms of
the Plan, provided that any such securities shall cease to be Registrable
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Securities if (a) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement, or (b) such securities
shall have been transferred pursuant to Rule 144 to a person who is not a
Permitted Transferee.
"Registration Expenses" means all reasonable expenses in connection
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with any registration of securities pursuant to this Agreement, including,
without limitation, the following: (a) SEC filing fees; (b) the fees,
disbursements and expenses of the Company's and Holder's counsel and accountants
in connection with the registration of the Registrable Securities to be disposed
of under the Securities Act, provided, that Registration Expenses shall include
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the reasonable fees, disbursements and expenses of only a single counsel for the
Holders; (c) all expenses in connection with the preparation, printing and
filing of the registration statement, any preliminary prospectus or final
prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to any stockholders, underwriters and dealers and all expenses
incidental to delivery of the Registrable Securities; (d) the cost of producing
blue sky or legal investment memoranda; (e) all expenses in connection with the
qualification of the Registrable Securities to be disposed of for offering and
sale under state securities laws, including the fees and disbursements of
counsel for the underwriters or Holders in connection with such qualification
and in connection with any blue sky and legal investments surveys; (f) the
filing fees incident to securing any review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Registrable Securities
to be disposed of; (g) transfer agents', depositories' and registrars' fees and
the fees of any other agent appointed in connection with such offering; (h) all
security engraving and security printing expenses; (i) all fees and expenses
payable in connection with the listing of the Registrable Securities on each
securities exchange or inter-dealer quotation system on which a class of common
equity securities of the Company is then listed; (j) all reasonable out-of-
pocket expenses of the Company incurred in connection with road show
presentations; (k) courier, overnight delivery, word processing, duplication,
telephone and facsimile expenses; and (l) any one-time payment for directors and
officers insurance directly related to such offering.
"Rule 144" means Rule 144 promulgated under the Securities Act, or any
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successor rule to similar effect.
"SEC" means the United States Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended, or any
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successor statute.
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2. Demand Registration.
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(a) At any time after the first anniversary of the effective date of
the Plan, upon written notice (a "Demand") from a Holder or Holders requesting
that the Company effect the registration under the Securities Act of any or all
of the Registrable Securities held by such Holder or Holders, which notice shall
specify the intended method or methods of disposition of such Registrable
Securities, the Company shall, within ten (10) days after receiving the Holder's
or Holders' Demand, give written notice (the "Request Notice") of such
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registration request to all other Holders. The Request Notice shall offer to
each such Holder the opportunity to include in such registration statement such
number of Registrable Securities as each such Holder may request within ten (10)
days after the date of the Request Notice, subject to the limitations of this
Section 2(a) and to compliance with the other provisions of this Agreement. As
promptly as possible after such ten (10) day period, the Company shall use its
Best Efforts to effect, in the manner set forth in Section 5 hereof, the
registration under the Securities Act of all such Registrable Securities for
disposition in accordance with the intended method or methods of disposition
stated in the Holder's or Holders' request, provided that:
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(i) if prior to receipt of a registration request pursuant to
this Section 2(a), the Company has commenced a financing plan through a
formal "all hands" meeting or other consultation with outside advisors,
including an underwriter if such financing plan is an underwritten
offering, and, in the good-faith business judgment of a majority of the
Company's Board of Directors, a registration at the time and on the terms
requested would materially and adversely affect or interfere with such
financing plan of the Company or its subsidiaries, the Company shall not be
required to effect a registration pursuant to this Section 2(a) until the
earliest of (A) the abandonment of such financing plan, (B) sixty (60) days
after the termination of such financing plan, (C) the termination of any
"hold back" period not exceeding ninety (90) days obtained by the
underwriter(s) of such financing plan from any person in connection
therewith or (D) one hundred twenty (120) days after receipt by the Holder
requesting registration of the written notice from the Company referred to
above in this Section 2(a);
(ii) while a registration request is pending pursuant to this
Section 2(a), the Company, with the prior approval of a majority of the
Company's Board of Directors, may delay commencing to effect such
registration until 60 days after receipt of notice of such request if the
Board of Directors determines, in good faith, that the filing of a
registration statement at the time of such request would be materially
detrimental to the Company such that such filing would have a material
adverse effect upon the ability of the Company to consummate a material
acquisition or other comparable extraordinary transaction, provided that
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the Company shall not be permitted to delay a requested registration in
reliance on this clause (ii) more than once in any twelve (12) month
period; and
(iii) the Company shall not be obligated to file a registration
statement relating to a registration request pursuant to this Section 2(a):
(A) within a period of two (2) months after the effective date of any other
registration statement of the Company demanded pursuant to this Section
2(a); or (B) if such registration
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request is for a number of Registrable Securities that represent in the
aggregate (on an as converted basis) less than two percent (2%) of the
outstanding number of shares of Common Stock.
(b) In the event that any registration pursuant to this Section 2
shall involve, in whole or in part, an underwritten offering, the Holder
initiating the demand pursuant to Section 2(a) shall have the right to designate
an underwriter as the sole lead managing underwriter of such underwritten
offering, subject to the Company's consent which shall not be unreasonably
withheld.
(c) Holders other than the Holder initiating the demand pursuant to
Section 2(a) shall have the right to include their shares of Registrable
Securities in any registration pursuant to Section 2(a). In connection with a
registration in which multiple Holders participate, in the event such
registration involves an underwritten offering and the Holder initiating demand
pursuant to Section 2(a) is advised in writing (with a copy to the Company) by
the lead managing underwriter designated by such Holder pursuant to Section 2(c)
that, in such firm's good-faith opinion, marketing factors require a limitation
on the number of shares to be underwritten, the number of shares to be included
in the underwriting and registration shall be allocated pro rata among the
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Holders on the basis of the shares of Registrable Securities held by each such
Holder.
3. Piggyback Registration. At any time if the Company proposes to
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register any of its Common Stock or any other of its common equity securities
(collectively, "Other Securities") under the Securities Act (other than a
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registration on Form S-4 or S-8 or any successor form thereto), whether or not
for sale for its own account, in a manner which would permit registration of
Registrable Securities for sale for cash to the public under the Securities Act,
it will each such time give prompt written notice to each Holder of its
intention to do so at least thirty (30) days prior to the anticipated filing
date of the registration statement relating to such registration. Such notice
shall offer each such Holder the opportunity to include in such registration
statement such number of Registrable Securities as each such Holder may request.
Upon the written request of any such Holder made within twenty (20) days after
the receipt of the Company's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), the Company shall use its Best Efforts to effect, in the
manner set forth in the applicable provisions of Section 5, in connection with
the registration of the Other Securities, the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register, to the extent required to permit the disposition (in accordance with
such intended methods thereof) of the Registrable Securities so requested to be
registered, provided that:
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(a) if, at any time after giving such written notice of its intention
to register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company may,
at its election, give written notice of such determination to each Holder of
Registrable Securities and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection therewith
as provided in Section 4), without prejudice,
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however, to the rights of any Holder to request that such registration be
effected as a registration under Section 2;
(b) (i) if the registration referred to in the first sentence of this
Section 3 is to be an underwritten primary registration on behalf of the
Company, and the managing underwriter advises the Company in writing that, in
such firm's opinion, such offering would be materially and adversely affected by
the inclusion therein of the Registrable Securities requested to be included
therein, the Company shall include in such registration: (A) first, all
securities the Company proposes to sell for its own account (the "Company
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Securities") and (B) second, up to the full number of Registrable Securities in
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excess of the number or dollar amount of the Company Securities, which, in the
good-faith opinion of such managing underwriter, can be so sold without
materially and adversely affecting such offering (and, if less than the full
number of such Registrable Securities, allocated pro rata among the Holders of
such Registrable Securities on the basis of the number of securities requested
to be included therein by each such Holder) and (ii) if the registration
referred to in the first sentence of this Section 3 is to be an underwritten
secondary registration on behalf of holders of securities (other than
Registrable Securities) of the Company (the "Other Holders"), and the managing
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underwriter advises the Company in writing that in their good-faith opinion such
offering would be materially and adversely affected by the inclusion therein of
the Registrable Securities requested to be included therein, the Company shall
include in such registration the amount of securities (including Registrable
Securities) that such managing underwriter advises allocated pro rata among the
Other Holders and the Holders on the basis of the number of remaining securities
(including Registrable Securities) requested to be included therein by each
Other Holder and each Holder;
(c) the Company shall not be required to effect any registration of
Registrable Securities under this Section 3 incidental to the registration of
any of its securities in connection with mergers, acquisitions, dividend
reinvestment plans or stock option or other executive or employee benefit or
compensation plans; and
(d) no registration of Registrable Securities effected under this
Section 3 shall relieve the Company of its obligation to effect a registration
of Registrable Securities pursuant to Section 2 hereof.
4. Expenses. The Company agrees to pay all Registration Expenses with
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respect to any offerings pursuant to Section 2 or Section 3 hereof; provided
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that in no event shall the Company be responsible for underwriters' fees and
commissions payable with respect to any Registrable Securities.
5. Registration and Qualification.
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(a) If and whenever the Company is required to use its Best Efforts to
effect the registration of any Registrable Securities under the Securities Act
as provided in Section 2 or 3 hereof, the Company shall:
(i) prepare and file a registration statement under the Securities
Act relating to the Registrable Securities to be offered as soon as
practicable, but in no
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event later than forty-five (45) days (sixty (60) days if the applicable
registration form is other than Form S-3) after the date notice is given
(subject to Section 2(a) hereof), and use its Best Efforts to cause the
same to become effective as promptly as practicable;
(ii) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to (A) keep such registration statement effective until
the earlier of such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the
Holder or Holders thereof set forth in such registration statement or the
expiration of nine (9) months after such registration statement becomes
effective and (B) comply with the applicable provisions of the Securities
Act;
(iii) furnish to each Holder selling Registrable Securities by means
of such registration (each, a "Selling Holder") and to any underwriter of
such Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents, as the
Selling Holders or such underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities, and a copy of any and
all transmittal letters or other correspondence to, or received from, the
SEC or any other governmental agency or self-regulatory body or other body
having jurisdiction (including any domestic or foreign securities exchange)
relating to such offering;
(iv) unless the exemption from state regulation of securities
offerings under Section 18 of the Securities Act applies, use its Best
Efforts to register or qualify all Registrable Securities covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as the Holders or any underwriter of such Registrable
Securities shall request, and use its Best Efforts to obtain all
appropriate registrations, permits and consents required in connection
therewith, and do any and all other acts and things which may be necessary
or advisable to enable the Holders or any such underwriter to consummate
the disposition in such jurisdictions of its Registrable Securities covered
by such registration statement;
(v) furnish to each Selling Holder , at such Selling Holder's
request, a signed counterpart, addressed to such Selling Holder, of (A) an
opinion of counsel for the Company, dated the effective date of such
registration statement (or, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement speaking both as of the effective date of the registration
statement and the date of the closing under the underwriting agreement),
and (B) a "cold comfort" letter, dated the effective date of such
registration statement (and, if such registration statement includes an
underwritten public offering, dated the date of the closing under the
underwriting agreement),
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signed by the independent public accountants who have certified the
Company's financial statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein), provided such Selling
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Holders deliver to the independent public accountants appropriate
representations and warranties, and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel and
in accountants' letters delivered to underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such
other financial matters, as such Selling Holder may reasonably request;
(vi) promptly notify the Selling Holders in writing (A) at any time
when a prospectus relating to a registration pursuant to Section 2 or 3
hereof is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (B) of any
request by the SEC or any other regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration
statement or other document relating to such offering, and in either such
case (A) or (B) at the request of the Selling Holders, subject to Section 4
hereof, prepare and furnish to the Selling Holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(vii) otherwise use its Best Efforts to comply with all applicable
rules and regulations of the SEC related to such registration, and make
available to its securities holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve (12) months, but
not more than eighteen (18) months, beginning with the first month of the
first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act;
(viii) use its Best Efforts to list such Registrable Securities on
each securities exchange on which shares of Common Stock are then listed
(including the New York Stock Exchange), if such securities are not already
so listed and if such listing is then permitted under the rules of such
exchange, and, if necessary, provide a transfer agent and registrar for
such Registrable Securities not later than the effective date of such
registration statement, with all expenses in connection therewith to be
paid in accordance with Section 4 hereof; and
(ix) furnish certificates representing ownership of the Registrable
Securities being sold without a Securities Act legend in such denominations
as
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shall be requested by the Selling Holders or the underwriters with expenses
therewith to be paid in accordance with Section 4 hereof.
(b) The Holders of Registrable Securities on whose behalf Registrable
Securities are to be distributed by one or more underwriters shall be parties to
any underwriting agreements relating to the distribution of such Registrable
Securities and the representations and warranties by, and the other agreements
on the part of, the Company to and from the benefit of such underwriters, shall
also be made to and for the benefit of such Holders of Registrable Securities.
6. Conversion of Other Securities. If a Holder offers any options,
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rights, warrants or other securities issued by it or any other person that are
offered with, convertible into or exercisable or exchangeable for any
Registrable Securities, the Registrable Securities underlying such options,
rights, warrants or other securities shall be eligible for registration pursuant
to Section 2 and Section 3 of this Agreement.
7. Underwriting, Due Diligence.
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(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this
Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section 8 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 5(a)(v) hereof. The Selling Holders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by the Selling Holders on whose behalf the
Registrable Securities are to be distributed as are customarily contained in
underwriting agreements with respect to secondary distributions. Selling Holders
may require that any additional securities included in an offering proposed by a
Holder be included on the same terms and conditions as the Registrable
Securities that are included therein.
(b) In the event that any registration pursuant to Section 3 shall
involve, in whole or in part, an underwritten offering, the Company may require
the Registrable Securities requested to be registered pursuant to Section 3 to
be included in such underwriting on the same terms and conditions as shall be
applicable to the other securities being sold through underwriters under such
registration. If requested by the underwriters for such underwritten offering,
the Selling Holders on whose behalf the Registrable Securities are to be
distributed shall enter into an underwriting agreement with such underwriters,
such agreement to contain such representations and warranties by the Selling
Holders and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions,
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including, without limitation, indemnities and contribution substantially to the
effect and to the extent provided in Section 8 hereof. Such underwriting
agreement shall also contain such representations and warranties by the Company
and such other person or entity for whose account securities are being sold in
such offering as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the Securities Act, the
Company shall give the Holders of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such Holder and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
8. Indemnification and Contribution.
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(a) In the case of each offering of Registrable Securities made pursuant
to this Agreement, the Company agrees to indemnify and hold harmless each
Holder, its officers and directors, each underwriter of Registrable Securities
so offered and each person, if any, who controls any of the foregoing persons
within the meaning of the Securities Act, from and against any and all claims,
liabilities, losses, damages, expenses and judgments, joint or several, to which
they or any of them may become subject, under the Securities Act or otherwise,
including any amount paid in settlement of any litigation commenced or
threatened, and shall promptly reimburse them, as and when incurred, for any
reasonable legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such claims,
liabilities, losses, damages, expenses or judgments shall arise out of, or shall
be based upon, any untrue statement or alleged untrue statement of a material
fact contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
in any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
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the Company shall not be liable to a particular Holder in any such case to the
extent that any such claim, liability, loss, damage, expense or judgment arises
out of, or is based upon, any untrue statement or alleged untrue statement, or
any omission or alleged omission, if such statement or omission shall have been
made in reliance upon and in conformity with information relating to such Holder
furnished to the Company in writing by or on behalf of such Holder specifically
for use in the preparation of the registration statement (or in any preliminary
or final prospectus included therein) or any amendment thereof or supplement
thereto. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, its officers and
directors, underwriters of the Registrable Securities or any controlling person
of the foregoing; provided, further, that, as to any underwriter or any person
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controlling any underwriter, this indemnity does not apply to any claim,
liability, loss, damage, expense or judgment arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission in
any
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preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(b) In the case of each offering made pursuant to this Agreement, each
Holder of Registrable Securities included in such offering, by exercising its
registration rights hereunder, agrees to indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing within the meaning of the Securities Act (and if requested by the
underwriters, each underwriter who participates in the offering and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act), from and against any and all claims, liabilities, losses, damages,
expenses and judgments, joint or several, to which they or any of them may
become subject under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such claims, liabilities, losses, damages, expenses or judgments
shall arise out of, or shall be based upon, any untrue statement of a material
fact contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
any omission to state therein a material fact relating to the Holder required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that such untrue statement of a material
fact contained in, or such material fact relating to the Holder is omitted from,
information relating to such Holder furnished in writing to the Company by or on
behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability which such
Holder may otherwise have to the Company, or any of its directors, offices or
controlling persons; provided, however, that, as to any underwriter or any
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person controlling any underwriter, this indemnity does not apply to any claim,
liability, loss, damage, expense or judgment arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission in
any preliminary prospectus if a copy of a prospectus was not sent to given by or
on behalf of an underwriter to such person asserting such claim, liability,
loss, damage, expense or judgment at or prior to the written confirmation of the
sale of the Registrable Securities as required by the Securities Act and such
untrue statement or omission had been corrected in such prospectus; and
provided, further, that in no event shall any such Holder be liable for any
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amount in excess of the net proceeds received from the sale of the Registrable
Securities by such Holder in the subject offering.
(c) Procedure for Indemnification. Each party indemnified under paragraph
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(a) or (b) of this Section 8 shall, promptly after receipt of notice of any
claim or the commencement of any action against such indemnified party in
respect of which indemnity may be sought, notify the indemnifying party in
writing of the claim or the commencement thereof; provided that the failure to
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notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) of this Section 8, except to the extent the indemnifying
party was prejudiced by such failure, and in no event shall such failure relieve
the indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be
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brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided that each indemnified party, its
--------
officers and directors, if any, and each person, if any, who controls such
indemnified party within the meaning of the Securities Act, shall have the right
to employ separate counsel reasonably approved by the indemnifying party to
represent them if the named parties to any action (including any impleaded
parties) include both such indemnified party and an indemnifying party or an
affiliate of an indemnifying party, and such indemnified party shall have been
advised by counsel either (i) that there may be one or more legal defenses
available to such indemnified party that are different from or additional to
those available to such indemnifying party or such affiliate or (ii) a conflict
may exist between such indemnified party and such indemnifying party or such
affiliate, and in that event the fees and expenses of one such separate counsel
for all such indemnified parties shall be paid by the indemnifying party. An
indemnified party will not enter into any settlement agreement which is not
approved by the indemnifying party, such approval not to be unreasonably
withheld. The indemnifying party may not agree to any settlement of any such
claim or action which provides for any remedy or relief other than monetary
damages for which the indemnifying party shall be responsible hereunder, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld. In any action hereunder as to which the indemnifying
party has assumed the defense thereof with counsel reasonably satisfactory to
the indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof. In all instances, the
indemnified party shall cooperate fully with the indemnifying party or its
counsel in the defense of each claim or action.
If the indemnification provided for in this Section 8 shall for any
reason be unavailable to an indemnified party in respect of any claim,
liability, loss, damage, expense or judgment in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such claim, liability, loss, damage, expense or judgment
in respect thereof, in such proportion as shall be appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the indemnifying party on the one hand or the
indemnified party on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission, but not by reference to any indemnified party's stock
ownership in the Company. In no event, however, shall a Holder be required to
contribute in excess of the amount of the net proceeds received by such Holder
in connection with the sale of Registrable Securities in the offering which is
the subject of such loss, claim, damage or liability. The amount paid or
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payable by an indemnified party as a result of the claim, liability, loss,
damage, expense or judgment in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claims. 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.
9. Rule 144. The Company shall take such measures and file such
---------
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 .
10. Holdback. The Company agrees, if so required by the managing
---------
underwriter, not to sell, make any short sale of, loan, grant any option for the
purchase of (other than pursuant to employee benefit plans), effect any public
sale or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any such
securities during the thirty (30) days prior to and the ninety (90) days after
any underwritten registration pursuant to Section 2 or 3 hereof has become
effective, except as part of such underwritten registration and except pursuant
to registrations on Form ▇-▇, ▇-▇ or any successor or similar forms thereto.
11. Transfer of Registration Rights.
--------------------------------
(a) A Holder may transfer all or any portion of its rights under this
Agreement only to a Permitted Transferee of Registrable Securities. In
connection with any such transfer, the term "Holder" as used in this Agreement
shall, where appropriate to assign the rights and obligations of a Holder
hereunder to such Permitted Transferee, be deemed to refer to such Permitted
Transferee.
(b) After any such transfer, the Holder making such transfer shall retain
its rights under this Agreement with respect to all other Registrable Securities
still owned by such Holder.
(c) Upon the request of the Holder making such transfer, the Company
shall execute a Registration Rights Agreement with such Permitted Transferee or
a proposed Permitted Transferee substantially similar to this Agreement, or
amend this Agreement to add such Permitted Transferee as a party hereto.
12. Miscellaneous.
--------------
(a) Injunctions. Each party acknowledges and agrees that irreparable
------------
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
Therefore, each party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement
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and to enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
(b) Severability. If any term or provision of this Agreement shall be
-------------
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
each of the parties shall use its Best Efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
-------------------
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. No failure or delay on the part of either party (or
-------------
the intended third-party beneficiaries referred to herein) in exercising any
power or right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power preclude any other or
further exercise thereof or the exercise of any other right or power. No
modification or waiver of any provision of this Agreement nor consent to any
departure therefrom shall in any event be effective unless the same shall be in
writing and signed by an authorized officer of each of the parties, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
(e) Entire Agreement. This Agreement contains the entire understanding
-----------------
of the parties with respect to its subject matter. This Agreement supersedes all
prior agreements and understandings between the parties, whether written or
oral, with respect to the subject matter hereof. The paragraph headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning or interpretation of this Agreement. The
parties agree and acknowledge that if any Holder or any Affiliate of a Holder
acquires any securities of the Company other than Registrable Securities ("Other
Securities"), from the Company or any other Person, through any transaction
including, without limitation, any tender offer for debt securities, then upon
the request of such Holder or Affiliate, the Company shall enter into a
registration rights agreement with such Holder or Affiliate providing
registration rights in respect of such Other Securities on terms and conditions
comparable to those set forth in this Agreement as if such Other Securities were
Registrable Securities under this Agreement.
(f) Counterparts. For the convenience of the parties, this Agreement
-------------
may be executed in any number of counterparts, each of which shall be deemed to
be an original but all of which together shall be one and the same instrument.
(g) Amendment. This Agreement may be amended only by a written
----------
instrument duly executed by an authorized officer of each of the parties hereto;
provided that the Company may amend this Agreement to add a Permitted Transferee
--------
as a party hereto without the consent of any other party hereto.
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(h) Notices. All notices, requests, claims, demands and other
--------
communications under this Agreement shall be in writing and shall be deemed
given when received if delivered personally, on the next business day if sent by
overnight courier for next business day delivery (providing proof of delivery),
when confirmation is received, if sent by facsimile or in five (5) business days
if sent by U.S. registered or certified mail, postage prepaid (return receipt
requested) to the other parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) if to the Company, then to:
--------------------------
The FINOVA Group Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Berkadia or any other Holder, then to:
-------------------------------------------
Berkadia LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. Hamburg
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
--------------
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
-------------
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(i) Governing Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
(j) Term. This Agreement shall remain in full force and effect until
-----
there are no Registrable Securities outstanding or until terminated by the
mutual agreement of the parties hereto.
(k) Assignment. Except as provided in Section 11 hereof, the parties
-----------
may not assign their rights under this Agreement. This Agreement shall be
binding upon and inure to the benefit of successors to the parties hereto.
(l) Priority of Rights. The rights granted to the Holders under this
-------------------
Agreement shall be senior to and take priority over any other registration
rights granted by the Company. The Company agrees that it shall not grant any
registration rights to any third party unless such rights are expressly made
subject to the rights of the Holders in a manner consistent with this Agreement.
The Company also agrees that it shall not grant any Holder any registration
rights which are senior or take priority over the registration rights granted to
all Holders under this Agreement
(m) Construction. Each party represents and warrants that such party
-------------
has full power and authority to enter into and execute this Agreement. Every
covenant, term, and provision of this Agreement shall be construed simply
according to its fair meaning and not strictly for or against any party. In the
event any claim is made by any party relating to any conflict, omission, or
ambiguity in this Agreement, no presumption or burden of proof or persuasion
shall be implied by virtue of the fact that this Agreement was prepared by or at
the request of a particular party or such party's counsel.
[The rest of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their authorized representative as of the date first above
written.
THE FINOVA GROUP INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Vice President
BERKADIA LLC
/s/ ▇▇▇▇ ▇. Hamburg
By: ______________________________
Name: ▇▇▇▇ ▇. Hamburg
Its: President
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