As filed with the Securities and Exchange Commission on April 5, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE FINOVA GROUP INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 86-0695381
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1850 North Central Avenue
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Samuel L. Eichenfield
Chairman, President and Chief Executive Officer
The FINOVA Group Inc.
1850 North Central Avenue
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
(Name, Address, Including Zip Code, and Telephone
Number, Including Area Code, of Agent For Service)
-------------------
Please send copies of all communications to:
Richard Lieberman Karen E. Bertero
Vice President Gibson, Dunn & Crutcher LLP
Associate General Counsel 333 South Grand Avenue
The FINOVA Group Inc. Los Angeles, California 90071
1850 North Central Avenue (213) 229-7000
P.O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ] _________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================
<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Title of Common Amount to be Aggregate Price Aggregate Offering Amount of
Stock to be Registered Registered Per Unit Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------
Common Stock - par value
$.01 per share 211,379 $50.84375 $10,747,301.03 $2,987.75
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
Calculated on the basis of the average of the high and low reported prices
of the Registrant's Common Stock on the New York Stock Exchange on March
29, 1999.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
================================================================================
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILES WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 5, 1999.
Prospectus [FINOVA LOGO]
211,379 Shares of Common Stock
The FINOVA Group Inc.
1850 N. Central Avenue
P. O. Box 2209
Phoenix, Arizona 85002-2209
(602) 207-6900
These shares may be offered for sale FINOVA is registering these shares as
from time to time by stockholders required by the Registration Rights
listed below in "Selling Agreement we signed with the Selling
Stockholders." They may sell their Stockholders when FINOVA acquired
shares at their discretion. As a Preferred Business Credit, Inc.
result, some or all of these shares ("PBC") by way of merger.
may not be sold by the Selling
Stockholders.
The Selling Stockholders, not FINOVA, FINOVA's common stock is quoted on the
will receive the proceeds from the New York Stock Exchange under the
sale of these shares. FINOVA will pay symbol "FNV." The closing price quoted
all of the expenses of the on the NYSE's composite tape was
registration of these shares, $51.6875/share on March 29,1999.
estimated to be $50,000.
The securities have not been approved The Selling Stockholders may offer the
or disapproved by the SEC or any state securities directly or through
securities commission. underwriters, agents or dealers. "Plan
of Distribution" below provides more
None of those authorities has information on this topic.
determined that this prospectus is
accurate or complete.
Any representation to the contrary is
a criminal offense.
April __, 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and * Annual Report on Form 10-K/A for
current reports, proxy and information the year ended December 31,
statements and other information with 1998.
the SEC. You may read and copy any
document we file at the SEC's public * Portions of the Proxy Statement
reference rooms in Washington, D.C., on Schedule 14A for the Annual
New York, New York and Chicago, Meeting of Shareholders to be
Illinois. Please call the SEC at held on May 13, 1999 that have
1-800-SEC-0330 for more information on been incorporated by reference
the public reference rooms and their into our 10-K.
copy charges. Our SEC filings are also
available to the public from the SEC's * Current Reports on Form 8-K
web site at http://www.sec.gov. You dated January 19 and March 30,
may also inspect our SEC reports and 1999.
other information at the New York
Stock Exchange, 20 Broad Street, New * The description of FINOVA's
York, New York 10005. capital stock contained in our
Registration Statement on Form
The SEC allows us to "incorporate S-3 dated March 3, 1999.
by reference" the information we file
with them, which means we can disclose We will provide you with a copy of
information to you by referring you to these filings, at no cost to you, upon
those documents. Information written or oral request directed to:
incorporated by reference is part of
this prospectus. Later information Treasurer
filed with the SEC updates and The FINOVA Group Inc.
supersedes this prospectus. 1850 North Central Avenue
P.O. Box 2209
We incorporate by reference the Phoenix, Arizona 85002-2209
documents listed below and any future (602) 207-6900
filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934
until this offering is completed:
FINOVA
The FINOVA Group Inc. ("FINOVA," enable us to command pricing that
"we" or "us") is a financial services provides satisfactory spread over our
holding company. Through our principal borrowing costs.
subsidiary, FINOVA Capital Corporation
("FINOVA Capital"), we provide a broad We seek to maintain a high quality
range of financing and capital market portfolio and to minimize non-earning
products. We concentrate on lending to assets and write-offs. We use clearly
midsize business. FINOVA Capital has defined underwriting criteria and
been in operation since 1954. stringent portfolio management
techniques. We diversify our lending
We extend revolving credit activities geographically and among a
facilities, term loans and equipment range of industries, customers and
and real estate financing primarily to loan products.
"middle-market" businesses with
financing needs falling generally Due to the diversity of our
between $500,000 and $35 million. We portfolio, we believe we are better
operate in 18 specific industry or able to manage competitive changes in
market niches under three market our markets and to withstand the
groups. We selected these niches impact of deteriorating economic
because our expertise in evaluating conditions on a regional or national
the creditworthiness of prospective basis. There can be no assurance,
customers and our ability to provide however, that competitive changes,
value-added services enables us to borrowers' performance, economic
differentiate ourselves from our conditions or other factors will not
competitors. That expertise and result in an adverse impact on our
ability also results of operations or financial
condition.
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We generate interest, leasing, fees * DISTRIBUTION AND CHANNEL FINANCE
and other income through charges (FORMERLY INVENTORY FINANCE)
assessed on outstanding loans, loan provides inbound and outbound
servicing, leasing, brokerage and inventory financing, combined
other activities. Our primary expenses inventory/accounts receivable
are the costs of funding the loan and lines of credit and purchase
lease business, including interest order financing for equipment
paid on debt, provisions for credit distributors, value-added
losses, marketing expenses, salaries resellers and dealers
and employee benefits, servicing and nationwide. Transaction sizes
other operating expenses and income generally range from $500,000 to
taxes. $30 million.
Our principal offices are located * GROWTH FINANCE provides
at 1850 North Central Avenue, P.O. Box collateral based working capital
2209, Phoenix, Arizona 85002-2209. Our financing primarily secured by
telephone number is (602) 207-6900. We accounts receivable. Typical
also have business development offices transaction sizes range from
throughout the U.S. and in London, $100,000 to $1 million and are
U.K. and Toronto, Canada. made to small and midsize
businesses with annual sales
BUSINESS GROUPS under $10 million.
We operate the following principal * REDISCOUNT FINANCE offers
lines of business under three market revolving credit facilities to
groups: the independent consumer finance
industry including sales,
COMMERCIAL FINANCE automobile, mortgage and premium
finance companies. Typical
* BUSINESS CREDIT offers transaction sizes range from $1
collateral-oriented revolving million to $35 million.
credit facilities and term loans
for manufacturers, distributors, SPECIALTY FINANCE
wholesalers and service
companies. Typical transaction * COMMERCIAL EQUIPMENT FINANCE
sizes range from $500,000 to $3 offers equipment leases, loans
million. and "turnkey" financing to a
broad range of midsize
* COMMERCIAL SERVICES (FORMERLY companies. Specialty markets
FACTORING SERVICES) offers full include the corporate aircraft
service factoring and accounts and emerging growth technology
receivable management services industries, primarily
for entrepreneurial and larger biotechnology and electronics.
firms, primarily in the textile Typical transaction sizes range
and apparel industries. The from $500,000 to $15 million.
annual factored volume of these
companies is generally between * COMMUNICATIONS FINANCE
$5 million and $25 million. This specializes in term financing to
line provides accounts advertising and
receivable financing and loans subscriber-supported businesses
secured by equipment and real including radio and television
estate. stations, cable operators,
outdoor advertising firms and
* CORPORATE FINANCE provides a publishers. Typical transaction
full range of cash flow-oriented sizes range from $1 million to
and asset-based term and $40 million.
revolving loan products for
manufacturers, wholesalers, * FRANCHISE FINANCE offers
distributors, specialty equipment, real estate and
retailers and commercial and
consumer service businesses.
Typical transaction sizes range
from $2 million to $35 million.
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acquisition financing for CAPITAL MARKETS
operators of established
franchise concepts. Transaction * REALTY CAPITAL specializes in
sizes generally range from providing capital markets-funded
$500,000 to $15 million. commercial real estate financing
products and commercial mortgage
* HEALTHCARE FINANCE offers a full banking services. Typical
range of working capital, transaction sizes range from $1
equipment and real estate million to $5 million.
financing products for the U.S.
healthcare industry. Transaction * INVESTMENT ALLIANCE provides
sizes typically range from equity and debt financing for
$500,000 to $25 million. midsize businesses in
partnership with institutional
* PORTFOLIO SERVICES provides investors and selected fund
customized receivable servicing sponsors. Typical transaction
and collections for timeshare sizes range from $1 million to
developers and other generators $15 million.
of consumer receivables.
* LOAN ADMINISTRATION provides
* PUBLIC FINANCE provides in-house servicing for FINOVA's
tax-exempt term financing to commercial loan products as well
state and local governments, as servicing and sub-servicing
non-profit corporations and of other mortgage and consumer
entities using industrial loans, including residential
revenue or development bonds. real estate, mobile homes,
Typical transaction sizes range automobiles and other consumer
from $100,000 to $5 million. products.
* RESORT FINANCE focuses on * MEZZANINE CAPITAL provides
construction, acquisition and senior and subordinated secured
receivables financing of term loans to small, fast
timeshare resorts worldwide as growing companies in a broad
well as term financing for range of industries that are
established golf resort hotels located in the U.S. and Canada
and receivables funding for for expansions, acquisitions,
developers of second home buy-outs and other strategic
communities. Typical transaction ventures. Typical transaction
sizes range from $5 million to sizes range from $1 million to
$35 million. $5 million.
* SPECIALTY REAL ESTATE FINANCE * HARRIS WILLIAMS & CO. provides
provides term financing for merger and acquisition advisory
hotel, anchored retail office services targeting middle market
and owner-occupied properties. businesses.
Typical transaction sizes range
from $5 million to $30 million. FINOVA is a Delaware corporation.
We were incorporated in 1991 to serve
* TRANSPORTATION FINANCE as the successor to The Dial Corp's
structures equipment loans, financial services businesses. In
leases, acquisition financing March 1992, Dial transferred those
and leveraged lease equity businesses to us in a spin-off. Since
investments for commercial and that time, FINOVA has increased its
cargo airlines worldwide, total assets from about $2.6 billion
railroads and operators of other at December 31, 1992 to $10.5 billion
transportation related at December 31, 1998. Income from
equipment. Typical transaction continuing operations increased from
sizes range from $5 million to $36.8 million in 1992 to $169.7
$30 million. Through Finova million in 1998. We believe FINOVA
Aircraft Investors, LLC, we also ranks among the largest independent
seek to use our market expertise commercial finance companies in the
and industry presence to U.S., based on total assets. Our
purchase, upgrade and resell common stock is traded on the New York
used commercial aircraft. Stock Exchange under the symbol FNV.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this sacrificing prudent lending
prospectus are "forward-looking," in standards. Doing business under
that they do not discuss historical those standards becomes more
fact but instead note future difficult, however, when
expectations, projections, intentions competitors offer financing with
or other items. These forward-looking lower pricing or less stringent
statements include matters in the criteria. FINOVA may not be
section of this prospectus captioned successful in maintaining and
"FINOVA." They are also made in continuing asset growth at
documents incorporated in this report historic levels.
by reference.
* The cost of FINOVA's capital.
Forward-looking statements are That cost depends on many
subject to known and unknown risks, factors, some of which are
uncertainties and other factors that beyond FINOVA's control, such as
may cause FINOVA's actual results or its portfolio quality, ratings,
performance to differ materially from prospects and outlook. Changes
those contemplated by the in the interest rate environment
forward-looking statements. Many of may reduce or eliminate profit
those factors are noted in conjunction margins.
with the forward-looking statements in
the text. Other important factors that * Changes in government
could cause actual results to differ regulations, tax rates and
include: similar matters. For example,
government regulations could
* The results of FINOVA's efforts significantly increase the cost
to implement its business of doing business or could
strategy. Failure to fully eliminate certain tax advantages
implement its business strategy of some of FINOVA's financing
might result in decreased market products.
penetration, adverse effects on
results of operations and other * Necessary technological changes
adverse results. (including those addressing
"Year 2000" data systems issues)
* The effect of economic may be more difficult, expensive
conditions and the performance or time consuming than
of FINOVA's borrowers. Economic anticipated.
conditions in general or in
particular market segments could * Costs or difficulties related to
impact the ability of FINOVA's integration of acquisitions.
borrowers to operate or expand
their businesses, which might * Other risks detailed in FINOVA's
result in decreased performance other SEC reports or filings.
for repayment of their
obligations or reduce demand for FINOVA does not intend to update
additional financing needs. The forward-looking information to reflect
rate of borrower defaults or actual results or changes in
bankruptcies may increase. assumptions or other factors that
could affect those statements. FINOVA
* Actions of FINOVA's competitors cannot predict the risk from reliance
and FINOVA's ability to respond on forward-looking statements in light
to those actions. FINOVA seeks of the many factors that could affect
to remain competitive without their accuracy.
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SELLING STOCKHOLDERS
We issued 211,379 shares of our common stock to the Selling
Stockholders in exchange for their interests in PBC in connection with our
acquisition of PBC by way of merger. At the effective time of the merger, the
shares of PBC of each Selling Stockholder automatically converted into the
number of our shares listed below opposite their names. The Selling Stockholders
may sell from time to time up to the number of shares listed opposite their
names.
Under the terms of a Registration Rights Agreement we entered into with
the Selling Stockholders, we agreed to use our best efforts to register for
offer or sale to the public the common stock issued to the Selling Stockholders.
The registration of these shares, however, does not necessarily mean that all or
any of the common stock will be sold by the Selling Stockholders. The shares of
Common Stock offered represent all shares of Common Stock owned by the
respective Selling Stockholders.
Selling Stockholder Shares Offered Hereby
------------------- ---------------------
Farhad Motia and Martha S. Motia, 100,658
as Trustees of the Motia Family
Trust dated 11/24/98
Frederick K. Bae 60,394
William Kuhns 30,197
Michael D. Murphy 10,065
Faramarz Motia 10,065
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USE OF PROCEEDS
We will not receive any of the through this prospectus. Those
proceeds from the sale of the common proceeds will be paid to the Selling
stock offered Stockholders.
PLAN OF DISTRIBUTION
The Selling Stockholders may sell prospectus. The Selling Stockholder
the common stock from time to time. may also loan or pledge the common
The Selling Stockholders may make stock to a broker-dealer and the
these sales on exchanges or in the broker-dealer may sell the loaned
over-the-counter market or otherwise, common stock. Upon a default, the
at prevailing prices or in negotiated broker-dealer may sell the pledged
transactions. The common stock may be common stock pursuant to this
sold by: (a) a block trade in which prospectus.
the broker-dealer will attempt to sell
the common stock as agent but may Broker-dealers or agents may
resell a portion of the block as receive compensation in the form of
principal to facilitate the commissions, discounts or concessions
transaction; (b) purchases by a from Selling Stockholders in amounts
broker-dealer as principal and resale to be negotiated in connection with
by that broker-dealer for its account the sale. These broker-dealers and any
pursuant to this prospectus; (c) an other participating broker-dealers may
exchange distribution under the rules be considered "underwriters" under the
of that exchange; and (d) ordinary Securities Act of 1933, as amended, in
brokerage transactions and connection with those sales. Any
transactions in which the broker commission, discount or concession
solicits purchasers. In effecting they receive may be considered
sales, broker-dealers engaged by the underwriting discounts or commissions
Selling Stockholders may arrange for under that Act.
other broker-dealers to participate in
the resales. In addition, any common The Selling Stockholders may agree
stock that qualify for sale under Rule to indemnify any broker-dealer or
144 may be sold under Rule 144 rather agent that participates in
than pursuant to this prospectus. transactions involving sales of the
common stock against certain
The Selling Stockholders may also liabilities, including liabilities
sell common stock short and redeliver arising under the Securities Act of
the common stock to close out these 1933.
short positions. The Selling
Stockholders may also enter into There is no assurance that any of
option, hedging or other transactions the Selling Stockholders will offer
with broker-dealers which require the for sale or sell any or all of the
delivery to the broker-dealer of the common stock covered by this
common stock. The broker-dealer may prospectus.
resell those shares pursuant to this
LEGAL MATTERS
Richard Lieberman, Esq., Vice General Counsel of FINOVA, will pass
President-Associate on the legality of the common stock
offered through this prospectus.
MISCELLANEOUS
You should rely only on the any jurisdiction in which the making
information contained or incorporated of an offer to sell or a solicitation
by reference in this document. We have of an offer to buy would not be
not authorized anyone to provide you authorized. Additionally, this
with information that is different. document is not an offer to sell or a
This document is not an offer to sell solicitation of an offer to buy common
or a solicitation of an offer to buy stock to anyone to whom it would be
common stock by anyone not qualified unlawful to do so.
to do so or by anyone in
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TABLE OF CONTENTS
WHERE YOU CAN FIND MORE INFORMATION..2
FINOVA (BUSINESS)....................2
SPECIAL NOTE REGARDING FORWARD-
LOOKING STATEMENTS...................5
SELLING STOCKHOLDERS.................6
USE OF PROCEEDS......................7
PLAN OF DISTRIBUTION.................7
LEGAL MATTERS........................7
MISCELLANEOUS........................7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated amounts of the expenses of and related to the offering
are as follows:
Registration fee................................... $ 2,987.75
Printing fees...................................... $10,000*
Legal fees and expenses............................ $10,000*
Accounting fees and expenses....................... $10,000*
New York Stock Exchange listing fees............... $14,750*
Miscellaneous expenses............................. $ 2,262.25*
Total............................ $50,000*
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*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Delaware General Corporation Law (the "DGCL"), the state of
incorporation of the Registrant, and the Certificate of Incorporation and Bylaws
of the Registrant provides for indemnification of directors and officers.
Section 145 of the DGCL provides generally that a person sued as a director,
officer, employee or agent of a corporation may be indemnified by the
corporation for reasonable expenses, including attorneys' fees, if, in cases
other than actions brought by or in the right of the corporation, he or she has
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation (and in the case of a
criminal proceeding, had no reasonable cause to believe that his or her conduct
was unlawful). Section 145 provides that no indemnification for any claim or
matter may be made, in the case of an action brought by or in the right of the
corporation, if the person has been adjudged to be liable, unless the Court of
Chancery or other court determines that indemnity is fair and reasonable despite
the adjudication of liability. Indemnification is mandatory in the case of a
director, officer, employee or agent who has been successful on the merits, or
otherwise, in defense of a suit against him or her.
Directors and officers of the Registrant are covered under policies of
directors' and officers' liability insurance with coverage aggregating
$100,000,000. The directors serving the Registrant are parties to
Indemnification Agreements with the Registrant (the "Indemnification
Agreements"). The Indemnification Agreements provide substantially the same
scope of coverage afforded by provisions in the Certificate of Incorporation and
Bylaws and are designed to provide greater assurance to the directors that
indemnification will be available because as contracts, the Indemnification
Agreements may not be unilaterally modified by the Registrant's Board of
Directors or stockholders. The Indemnification Agreements generally are intended
to provide indemnification for any amounts a director is legally obligated to
pay because of claims arising out of the director's service to the Registrant or
any subsidiary of the Registrant.
ITEM 16. EXHIBITS
4.1 Registration Rights Agreement, dated February 17, 1999, by and
among The FINOVA Group Inc. and the shareholder of Preferred
Business Credit, Inc.
5.1 Opinion of Richard Lieberman, Esq.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Richard Lieberman, Esq.(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature pages hereto)
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ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
PROVIDED HOWEVER, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed with or furnished to the
Commission by the Registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Exchange Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Common Stock
being registered, the Registrant will, unless in the opinion of its counsel the
matter
II-2
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has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final adjudication
of such issue.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Phoenix, State of Arizona, on the 5th day of
April, 1999.
THE FINOVA GROUP INC.
By: /s/ Samuel L. Eichenfield
-----------------------------
Samuel L. Eichenfield
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of The FINOVA Group Inc.,
hereby severally constitute Samuel L. Eichenfield, Robert J. Fitzsimmons and
William J. Hallinan, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement filed herewith and
any and all amendments to said Registration Statement (including post-effective
amendments), and generally to do all such things in our name and behalf in our
capacities as officers and directors to enable The FINOVA Group Inc. to comply
with the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Samuel L. Eichenfield Director, Chairman, President April 5, 1999
- ---------------------------- and Chief Executive Officer
Samuel L. Eichenfield (Principal Executive Officer)
/s/ Bruno A. Marszowski Senior Vice President-Controller April 5, 1999
- ---------------------------- and Chief Financial Officer
Bruno A. Marszowski (Principal Financial and
Accounting Officer)
/s/ Robert H. Clark, Jr. Director April 5, 1999
- ----------------------------
Robert H. Clark, Jr.
/s/ Constance R. Curran Director April 5, 1999
- ----------------------------
Constance R. Curran
/s/ G. Robert Durham Director April 5, 1999
- ----------------------------
G. Robert Durham
/s/ James L. Johnson Director April 5, 1999
- ----------------------------
James L. Johnson
/s/ Kenneth R. Smith Director April 5, 1999
- ----------------------------
Kenneth R. Smith
/s/ Shoshana B. Tancer Director April 5, 1999
- ----------------------------
Shoshana B. Tancer
/s/ John W. Teets Director April 5, 1999
- ----------------------------
John W. Teets
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description
- -------------- -----------
4.1 Registration Rights Agreement, dated February 17, 1999, by
and among The FINOVA Group Inc. and the shareholder of
Preferred Business Credit, Inc..
5.1 Opinion of Richard Lieberman, Esq.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Richard Lieberman, Esq.(included in Exhibit 5.1)
24.1 Power of Attorney (included on signature pages hereto)
II-5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of February 17, 1999 by and among The FINOVA Group Inc., a
Delaware corporation ("FINOVA" or the "Company") and the undersigned shareholder
(each a "Holder" and collectively, the "Holders") of Preferred Business Credit,
Inc. ("PBC") common stock.
WHEREAS, the Holders will acquire shares of FINOVA common stock in
connection with the acquisition by way of merger (the "Acquisition") of PBC into
FINOVA, pursuant to the terms of a Merger Agreement, dated as of the date of
this agreement (the "Acquisition Agreement"); and
WHEREAS, pursuant to the terms of the Acquisition Agreement, the
Company has agreed to grant to the Holders the registration rights provided for
herein, in which FINOVA will register their FINOVA shares with the SEC, among
other obligations.
NOW, THEREFORE, in consideration of the above recitals, the mutual
covenants and agreements set forth in the Acquisition Agreement and this
agreement, the parties agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used herein without
definition have the meaning given to them in the Acquisition Agreement. As used
in this Agreement, the following capitalized terms mean:
"FORM S-3" means the Form S-3 authorized for use by the SEC to
register securities issued by publicly traded companies and any successor form.
"PERSON" shall mean an individual or a corporation, partnership,
limited liability company, association or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PROSPECTUS" shall mean any prospectus included in a Shelf
Registration Statement, or a registration statement with respect to an
underwritten offering in which the Holders participate, including any resale
prospectus and any preliminary prospectus, and any amendment or supplement
thereto, and in each case including all material incorporated by reference
therein.
"REGISTRATION EXPENSES" shall mean any and all expenses incident
to the performance of or compliance with this Agreement, including, without
limitation: (i) all applicable registration and filing fees imposed by the SEC
and such securities exchange or exchanges on which Shares are then listed or The
Nasdaq Stock Market ("Nasdaq") (ii) all fees and expenses incurred in connection
with compliance with state securities or "blue sky" laws (including reasonable
fees and disbursements of counsel for the Company in connection with
qualification of any of the Shares under any state securities or blue sky laws
and the preparation of a blue sky memorandum) and compliance with the rules of
the NASD; (iii) all expenses of printing and distributing the Shelf Registration
Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Shares on any
securities exchange or exchanges pursuant to Section 3(i) hereof; and (v) the
fees and disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses relating to any special
audits or "cold comfort" letters required by or incident to such performance and
compliance. Registration Expenses shall specifically exclude underwriting
discounts and commissions, counsel and other fees of Holders and transfer taxes,
if any, relating to the sale or disposition of Shares by the Holders.
<PAGE>
"SHARES" shall mean the shares of FINOVA common stock issued to
the Holders pursuant to the Acquisition Agreement and any equity securities
issued or issuable directly or indirectly with respect to the Shares issued to
the Holders by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"SHELF REGISTRATION STATEMENT" has the meaning set forth in
Section 2(a).
"SUSPENSION EVENT" shall have the meaning ascribed to it in
Section 6(b).
Other terms are defined elsewhere in this Agreement.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Subject to Sections 2(b) and 6 below, the Company shall file a
registration statement on Form S-3 or an amendment to an existing registration
statement on Form S-3, either of which may be on a comparable or successor form
and which may include shares of FINOVA common stock for resale by the Company or
other Company stockholders (the "Shelf Registration Statement"), registering the
Shares for resale by the Holders under the Securities Act of 1933 (the
"Securities Act"). FINOVA shall use its commercially reasonable efforts to cause
the Shelf Registration Statement to be declared effective by the SEC as soon as
practicable thereafter, but in any event no later than 90 days following the
closing of the Acquisition, except as provided in Sections 2(b) or 6 below.
(b) Notwithstanding the foregoing, if there is a Suspension Event
occurring at the time of issuance of the FINOVA Shares, FINOVA's obligation to
file a Registration Statement and to seek its effectiveness shall be suspended
during that Suspension Event. FINOVA shall give notice to the Holders of the
Suspension Event. As soon as practicable thereafter the Company shall use its
commercially reasonable efforts to cause that registration statement to be
declared effective by the SEC as soon as practicable thereafter, but in any
event no later than 90 days following termination of the last applicable
Suspension Event.
(c) The Company agrees to use its commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective (and to include a
Prospectus at all times meeting the requirements of the Securities Act) for a
period of one year from the original issuance of the Shares covered thereby
(such period is referred to as the "Shelf Period"), except as provided in
Sections 2(b) and 6.
(d) The Company shall pay all Registration Expenses in connection
with a registration pursuant to this Agreement.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company under Section 2 hereof, but subject to Sections 2(b) and 6 below, in the
event that the Company files any Shelf Registration Statement, it shall:
(a) prepare and file with the SEC, within the time period set forth
in Section 2 hereof, and use its commercially reasonable efforts to have
declared effective by the SEC, the Shelf Registration Statement, which shall (i)
be available for public resale of the Shares by the Holders and (ii) comply as
to form in all material respects with the requirements of the applicable form;
(b) furnish to a representative of the Holders (the "Representative")
the Shelf Registration Statement no later than two days following its filing
with the SEC;
(c) (i) use its commercially reasonable efforts to prepare and file
with the SEC such amendments to the Shelf Registration Statement as may be
necessary to keep it effective for the applicable periods; (ii) cause any
Prospectus to be amended or supplemented as required and to be filed as required
by Rule 424 or any similar rule that may be adopted under the Securities Act;
and (iii) respond as promptly as practicable to any comments received from the
SEC with respect to the Shelf Registration Statement or any amendments thereto;
2
<PAGE>
(d) furnish to the Holders, upon request and without charge,
reasonable quantities of any Prospectus and any amendment or supplement thereto
as the Holders request to facilitate the public sale or other disposition of the
Shares;
(e) use its commercially reasonable efforts to register or qualify
the Shares under all applicable state securities or blue sky laws of such
jurisdictions in the United States as the Holders may reasonably request in
writing and keep such registration or qualification effective during the period
the Shelf Registration Statement is required to be kept effective; PROVIDED,
HOWEVER, that in connection therewith, the Company shall not be required to (i)
qualify as a foreign corporation to do business or to register as a broker or
dealer in any such jurisdiction where it would not otherwise be required to
qualify or register but for this Section 3(e), (ii) subject itself to taxation
in any jurisdiction with respect to that registration or qualification, or (iii)
file a general consent to service of process in any jurisdiction;
(f) notify the Holders promptly and, if requested by the Holders,
confirm in writing, (i) when the Shelf Registration Statement and any
post-effective amendments have become effective, (ii) when any amendment or
supplement to a Prospectus has been filed with the SEC, except for an amendment
through incorporation by reference of subsequent filings under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending the
effectiveness of the Shelf Registration Statement or any part thereof or the
initiation of any proceedings for that purpose, (iv) if the Company receives any
notification with respect to the suspension of the qualification of the Shares
for offer or sale in any jurisdiction or the initiation of any proceeding for
such purpose, and (v) of the happening of any event during the periods the Shelf
Registration Statement is effective as a result of which (A) the Shelf
Registration Statement contains any 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 not misleading or (B) a Prospectus as then amended or
supplemented contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(g) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration Statement by
the SEC or any state securities authority as promptly as possible;
(h) furnish to the Holders upon request, without charge, at least one
conformed copy of the Shelf Registration Statement and any post-effective
amendments (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(i) cooperate with the Holders to facilitate the timely preparation
and delivery of certificates representing Shares to be sold and not bearing any
Securities Act legend and enable certificates for Shares to be issued and
registered in names and numbers as the Holders may reasonably request;
(j) use its commercially reasonable efforts to cause all Shares to be
listed on any securities exchange on which the Shares are then listed, or
included on Nasdaq if the Shares are then so included; and
(k) use its commercially reasonable efforts to make available
adequate current public information about the Company as contemplated by Rule
144(c) promulgated under the Securities Act.
4. CERTAIN AGREEMENTS OF THE HOLDERS.
(a) Each of the Holders agrees to furnish to the Company in writing
information regarding the Holders, as applicable, and their proposed
distribution of Shares as the Company may from time to time reasonably request
in connection with the preparation of the Shelf Registration Statement or the
3
<PAGE>
registration or qualification of the Shares under state securities or blue sky
laws, and if requested by the Company, report to the Company within ten (10)
days after the end of each month all sales or other dispositions of Shares made
by them during that month.
(b) To the extent timely notified in writing by the Company or the
managing underwriters and to the extent the directors and executive officers of
the Company are bound by similar provisions, each of the Holders agrees, if
requested by the Company in the case of a Company initiated non-underwritten
offering or if requested by the managing underwriter or underwriters in an
underwritten offering initiated by the Company or by a shareholder of the
Company pursuant to demand registration rights, not to effect any public sale or
distribution of any Shares (including a sale pursuant to Rule 144 under the
Securities Act) during the ten (10) day period prior to, and during the one
hundred twenty (120) day period beginning on, the date of effectiveness of each
Company initiated offering made pursuant to a registration statement, provided
that the Holders shall be entitled to participate in an underwritten offering
pro rata with all other holders of shares of Common Stock to be included in any
such registration, if, in the reasonable opinion of the managing underwriter of
any such underwritten registration such shares may be included in such
registration without having an adverse effect on the marketability or the price
of any shares of the FINOVA Common Stock proposed to be offered in such
underwritten registration and each of the Holders, as applicable, agrees to
enter into an underwriting agreement with such underwriters containing such
representations and warranties by the Holders, as applicable, and such terms and
provisions, including without limitation, provisions with respect to
indemnification and contribution, as are customarily contained in underwriting
agreements and deliver customary opinions of counsel and closing certificates.
(c) Holders agree that they will comply with applicable requirements
of SEC Rule 145, which may include restrictions on when and how they may sell or
otherwise dispose of their Shares, to the extent a Holder is subject to that
rule.
5. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless the Holders as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to which the Holders may become subject under
the Securities Act, other federal or state laws or otherwise (A) that arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or any amendments,
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements made not misleading, (B)
that arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or any amendment or
supplement, or the omission or alleged omission to state therein a material fact
necessary to make the statements made, in the light of the circumstances under
which they were made, not misleading or (C) that arise out of or are based upon
any violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law, which
violation or alleged violation arises out of the Shelf Registration Statement or
Prospectuses;
(ii) against any loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or alleged untrue statement, any omission or alleged
omission, if such settlement is effected with the written consent of the
Company, which consent shall not be unreasonably withheld; and
(iii) subject to the limitations set forth in Section 5(c),
against any expense (including reasonable fees and disbursements of counsel)
reasonably incurred in investigating, preparing or defending against any
litigation, investigation or proceeding by any governmental agency or body,
4
<PAGE>
commenced or threatened, in each case whether or not a party, or any claim
whatsoever based upon any such untrue statement or alleged untrue statement,
omission or alleged omission that relates to the sale by the Holders under a
Shelf Registration Statement, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this Section 5(a)(i),
(ii) and (iii) shall not apply to the Holders with respect to any loss,
liability, claim, damage or expense that arises out of or is based upon (1) any
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information furnished to the
Company by the Holders for use in the Shelf Registration Statement or any
amendment or a Prospectus or any amendment or supplement thereto, or (2) trades
made by the Holders in violation of Section 6 below.
(b) INDEMNIFICATION BY THE HOLDERS. The Holders, jointly and
severally, agree to indemnify and hold harmless the Company and its directors
and officers, including each director of the Company and each officer of the
Company who signed the Shelf Registration Statement, and each Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
to the same extent as the indemnity contained in Section 5(a) hereof, to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon (i) any untrue statement or alleged untrue statement or omission
or alleged omission made in the Shelf Registration Statement or any amendment or
a Prospectus or any amendment or supplement in reliance upon and in conformity
with information prepared and furnished to the Company by the Holder for use
therein or (ii) trades made by the Holder in violation of Section 6(a) below.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each indemnified party
shall give reasonably prompt written notice to each indemnifying party of any
action or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party (i) shall not
relieve it from any liability that it may have under the indemnity agreement
provided in Section 5(a) or (b) above, unless and to the extent it did not
otherwise learn of such action and the lack of notice by the indemnified party
materially prejudices the indemnifying party or results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) shall not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided under Section 5(a) and
(b) above. After receipt of such notice, the indemnifying party shall be
entitled to participate in and, at its option, jointly with any other
indemnifying party so notified, to assume the defense of such action or
proceeding at such indemnifying party's own expense with counsel chosen by such
indemnifying party and approved by the indemnified party or parties, which
approval shall not be unreasonably withheld; PROVIDED, HOWEVER, that, if the
defendants in any such action or proceeding include both an indemnified party
and an indemnifying party and the indemnified party reasonably determines, upon
advice of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying parties, then the indemnified
parties shall be entitled to counsel (which shall be limited to a single law
firm, selected by Holder if the Company is the indemnifying party, for all
indemnified parties) the reasonable fees and expenses of which shall be paid by
the indemnifying parties. If none of the indemnifying parties assumes the
defense of any such action or proceeding, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying parties
will pay the reasonable fees and expenses of counsel (which shall be limited to
a single law firm for all indemnified parties) for the indemnified parties. In
that event, however, no indemnifying party will be liable for any settlement
effected without the written consent of the indemnifying party, which consent
shall not be unreasonably withheld. If one or more of the indemnifying parties
assumes the defense of any action or proceeding in accordance with this
paragraph, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
that action or proceeding except as set forth in the proviso in the second
sentence of this Section 5(f).
6. SUSPENSION OF SHELF REGISTRATION REQUIREMENT.
(a) Each Holder agrees that he, she or it will not effect any sales
of Shares pursuant to any Shelf Registration Statement after he or it has
received notice from the Company to suspend sales as a result of the occurrence
5
<PAGE>
or existence of any Suspension Event (as defined in Section 6(b) below) until
such time as the Company provides notice to the Holder that all Suspension
Events have ceased to exist. All such information relating to a Suspension Event
obtained by Holders shall be kept confidential by the Holders and shall not be
used by the Holders for any other purpose. The Company shall notify the Holders
promptly after any Suspension Event occurs or ceases to exist to the extent he
or it continues to hold Shares and with respect to the cessation of a Suspension
Event, to the extent he or it has been provided notice of a Suspension Event. In
addition, each Holder agrees that he or it will not effect any sales of Shares
pursuant to the Shelf Registration Statement after he or it has received notice
from the Company to suspend sales because the Shelf Registration Statement, any
Prospectus or any supplement thereto contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements made, in
the light of the circumstances under which they were made, not misleading, until
the Company notifies that Holder that the misstatement or omission has been
corrected.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Holders' rights to sell Shares under a Shelf Registration
Statement and the Company's obligation to (i) file the Shelf Registration
Statement (ii) make any filings with any state securities authority, (iii) use
its commercially reasonable efforts to cause the Shelf Registration Statement or
any state securities filings to become effective, or (iv) amend or supplement
the Shelf Registration Statement or any state securities filings, shall be
temporarily suspended in the event of and during any Suspension Event. A
"Suspension Event" shall exist at such times (A) that the Company is not
eligible to use Form S-3 for the registration contemplated by Section 2(a)
hereof, (B) as circumstances exist that the Company determines make it
impractical or inadvisable for the Company to file, amend or supplement a Shelf
Registration Statement or such filings or to cause the Shelf Registration
Statement or such filings to become or remain effective (such circumstances to
include, without limitation, (Y) the Company conducting an underwritten primary
offering and being advised by the underwriters that sale of Shares under the
Shelf Registration Statement would have a material adverse effect on the
Company's offering or (Z) pending negotiations relating to, or consummation of,
a transaction material to the Company or the occurrence of some other event (p)
where any of the foregoing would require disclosure under applicable securities
laws of material information in the Shelf Registration Statement (or any other
document incorporated into a Shelf Registration Statement by reference) or such
state securities filings and (q) as to which the Company has a bona fide
business purpose for preserving confidentiality or which renders the Company
unable to comply with SEC requirements), or (C) as the Company may be engaged in
a share repurchase program and that program requires the Holders to refrain from
selling shares during that program, in the Company's opinion. Suspension of the
Company's obligations pursuant to this Section 6(b) shall continue as long as a
Suspension Event or its effect is continuing, in the Company's reasonable
discretion. The Company has no duty to avoid the creation of any Suspension
Event, which may run in succession.
7. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified,
supplemented or waived, nor may consent to departures therefrom be given,
without the written consent of the Company and the Holders to be directly
effected by that change.
(b) NOTICES. Unless otherwise provided, all notices or other
communications required or permitted to be given to the parties hereto shall be
in writing and shall be deemed to have been given if personally delivered,
including personal delivery by facsimile, provided that the sender receives
telephonic or electronic confirmation that the facsimile was received by the
recipient and that such facsimile is followed the same day by mailing by
certified or registered mail, return receipt requested, first class postage
prepaid (a "Mailing"), upon receipt of courier delivery or the third day
following a Mailing, addressed as follows (or at such other address as the
addressed party may have substituted by notice pursuant to this Section 7(b):
6
<PAGE>
(i) If to the Company:
The FINOVA Group Inc.
P.O. Box 2209, #1159
Phoenix, Arizona 85002-2209
Attention: General Counsel
Facsimile: (602) 207-4099
(ii) If to the Holders, to the addresses for them set forth in the
attached schedule to this agreement;
or to such other address as any party may have furnished in writing to the other
parties in the manner provided above. Unless otherwise advised in writing by the
Holders, the Representative shall be Mr. Farhad Motia. Holders shall not have
more than one Representative without consent of the Company.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
permitted assigns of the Company. This Agreement shall not be assignable by the
Holders without the prior written consent of the Company, which consent may be
withheld at the Company's sole discretion. Any approved assignee of the Holders'
Shares shall be required to agree to be bound by the terms of this Agreement and
shall be entitled to participate in the Shelf Registration Statement only as of
such time after the assignment that the Company is otherwise amending the Shelf
Registration Statement and such amended Shelf Registration Statement becomes
effective. A purchaser of Shares shall not be deemed to be a successor or
permitted assign for purposes of this Agreement.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Any party may execute this
Agreement by facsimile signature, and shall provide promptly to all other
parties an originally executed Agreement.
(e) HEADINGS AND INTERPRETATION. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof. In construing the meaning of this Agreement, no party hereto
shall be deemed the drafter of this Agreement and this Agreement shall be
construed according to its fair meaning and not strictly against any person as
the drafter hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona without giving effect to the
conflicts of law provisions thereof.
(g) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior oral
and written agreements and understandings and all contemporaneous written
agreements and understandings between the parties with respect to such subject
matter.
(h) ATTORNEYS' FEES. In the event of any suit or other proceeding to
construe or enforce any provision of this Agreement, or otherwise in connection
with this Agreement, the prevailing party's or parties' reasonable attorneys',
accountants' and experts' fees, costs and disbursements (in addition to all
other amounts and relief to which such party or parties may be entitled) shall
be paid by the other party or parties to such suit or proceeding.
(i) DEFAULT. If, because of the Company's breach or default, the
registration of the Shares is not completed pursuant to the provisions hereof,
the Holders shall not be entitled to receive consequential or punitive damages
arising out of such breach or default.
7
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
The FINOVA Group Inc.
By: /s/ Glenn E Gray
Vice President
MOTIA Family TRUST
By: /s/ Farhad Motia
Farhad Motia, Trustee
By: /s/ Martha S. Motia
Martha S. Motia, Trustee
/s/ Frederick Bae
Frederick Bae
/s/ Ruth Ann Bae
Ruth Ann Bae
/s/William Kuhns
William Kuhns
/s/ Michael Murphy
Michael Murphy
/s/ Aracieli Murphy
Aracieli Murphy
/s/ Faramarz Motia
Faramarz Motia
/s/ Cydney Cotter
Cydney Cotter
8
Richard Lieberman
Vice President
Associate General Counsel
The FINOVA Group Inc.
1850 N. Central Ave., #1159
P.O. Box 2209
Phoenix, Arizona 85002-2209
EXHIBIT 5.1
The FINOVA Group Inc.
1850 N. Central Ave.
P.O. Box 2209
Phoenix, AZ 85002-2209
Dear Ladies and Gentlemen:
As Vice President-Associate General Counsel, I have acted as counsel to
The FINOVA Group Inc., a Delaware corporation ("FINOVA"), in connection with the
registration by FINOVA under the Securities Act of 1933, as amended, of 211,379
shares of its common stock, $.01 par value (the "Shares") pursuant to a
Registration Statement on Form S-3 (File No. 333-________)(the "Registration
Statement"). The Shares are being offered for sale by certain shareowners of
FINOVA who were formerly shareowners of Preferred Business Credit, Inc. (the
"Selling Shareowners") identified in the Registration Statement.
On the basis of that investigation as I have deemed necessary, I am of
the opinion that the Shares to be offered for sale by the Selling Shareowners
have been duly authorized and are validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to me under the heading "Legal Matters"
contained in the prospectus that forms a part of the Registration Statement.
Very truly yours,
/s/ Richard Lieberman
Richard Lieberman
Vice President
Associate General Counsel
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of The FINOVA Group Inc. on Form S-3 of our report dated February
10,1999, appearing in the Annual Report on Form 10-K/A of The FINOVA Group Inc.
for the year ended December 31, 1998.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Phoenix, Arizona
April 5, 1999
