Exhibit 4.A
WARRANT
TO PURCHASE COMMON STOCK OF
THE FINOVA GROUP INC.
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TABLE OF CONTENTS
SECTION PAGE
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1. DEFINITIONS............................................................ 1
2. EXERCISE OF WARRANT.................................................... 5
2.1. Manner of Exercise.............................................. 5
2.2. Payment of Taxes................................................ 7
2.3. Fractional Shares............................................... 7
2.4. Continued Validity.............................................. 7
3. TRANSFER, DIVISION AND COMBINATION..................................... 8
3.1. Transfer........................................................ 8
3.2. Division and Combination........................................ 8
3.3. Expenses........................................................ 8
3.4. Maintenance of Books............................................ 9
4. ADJUSTMENT TO THE CURRENT WARRANT PRICE................................ 9
4.1. Stock Dividends, Subdivisions and Combinations.................. 9
4.2. Certain Other Distributions and Adjustments..................... 9
4.3. Other Provisions Applicable to Adjustments under this Section... 10
4.4. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets........................................... 11
4.5. Other Action Affecting Common Stock............................. 12
5. NOTICES TO WARRANT HOLDER.............................................. 12
5.1. Notice of Adjustments........................................... 12
5.2. Notice of Corporate Action...................................... 12
6. NO IMPAIRMENT.......................................................... 13
7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH
OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY.............................. 14
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS..................... 14
9. RESTRICTIONS ON TRANSFERABILITY........................................ 14
9.1. Restrictive Legend.............................................. 15
9.2. Notice of Proposed Transfers; Requests for Registration......... 15
9.3. Required Registration........................................... 16
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TABLE OF CONTENTS
(CONTINUED)
SECTION PAGE
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9.4. Incidental Registration......................................... 16
9.5. Registration Procedures......................................... 17
9.6. Expenses........................................................ 18
9.7. Indemnification and Contribution................................ 19
9.8. Termination of Restrictions..................................... 20
9.9. Listing on Securities Exchange.................................. 21
9.10. Certain Limitations on Registration Rights...................... 21
9.11. Selection of Managing Underwriters.............................. 21
10. SUPPLYING INFORMATION.................................................. 21
11. LOSS OR MUTILATION..................................................... 22
12. OFFICE OF COMPANY...................................................... 22
13. LIMITATION OF LIABILITY................................................ 22
14. MISCELLANEOUS.......................................................... 22
14.1. Nonwaiver and Expenses.......................................... 22
14.2. Notice Generally................................................ 22
14.3. Remedies........................................................ 23
14.4. Successors and Assigns.......................................... 23
14.5. Amendment....................................................... 24
14.6. Severability.................................................... 24
14.7. Headings........................................................ 24
14.8. Governing Law................................................... 24
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THIS WARRANT AND THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR "BLUE
SKY" LAWS AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT OR LAWS, THE RULES
AND REGULATIONS THEREUNDER OR THE PROVISIONS OF THIS WARRANT.
WARRANT
To Purchase Common Stock of
THE FINOVA GROUP INC.
THIS IS TO CERTIFY THAT LEUCADIA NATIONAL CORPORATION, or its permitted
registered assigns, is entitled, at any time during the Exercise Period (as
hereinafter defined), to purchase from THE FINOVA GROUP INC., a Delaware
corporation ("Company"), in whole or in part, such number of shares of Common
Stock (as hereinafter defined and subject to adjustment as provided herein) that
is equal to twenty percent (20%) (the "Maximum Percentage") of the Diluted
Common Stock as of the date on which this Warrant is exercised, after giving
effect to the exercise of this Warrant, at an aggregate purchase price of
$125,000,000, subject to downward adjustment as provided herein (the "Maximum
Aggregate Price"), all on the terms and subject to the conditions and pursuant
to the provisions hereinafter set forth.
1. DEFINITIONS
Terms used in this Warrant which are defined in the Purchase Agreement (as
defined below) are used herein as defined therein unless otherwise provided, and
the following terms have the respective meanings set forth below:
"Acceleration Event" shall mean a merger or consolidation involving Company
or sale of all or substantially all of the assets of Company (whether in one
transaction or in a series of related transactions) or the acquisition after the
Closing Date by any Person, or any group of two or more Persons acting in
concert (in each case, other than Leucadia and its Affiliates), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under Exchange Act)
directly or indirectly of securities of Company (including any securities
convertible into such securities) representing 20% or more of the combined
voting power of all securities of Company generally entitled to vote for the
election of directors, or any Bankruptcy Event.
"Additional Shares of Common Stock" shall mean all shares of Common Stock
issued by Company after the Closing Date, other than Warrant Stock.
"Affiliate" shall mean, with respect to any person or entity, any one
controlling, controlled by or under common control with such person or entity.
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"Bankruptcy Event" shall occur if Company shall commence a voluntary case
or other proceeding, or an involuntary case or other proceeding shall be
commenced by a third party against Company, seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of Company or any substantial part of its property, and in the case of
an involuntary case or other proceeding, such case or proceeding shall remain
undismissed or stayed for a period of 60 days; or an order for relief shall be
entered against Company under the federal bankruptcy laws as now or hereafter in
effect; or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors or shall take any corporate action to authorize any of the foregoing.
"Business Day" shall mean any day that is not a Saturday or Sunday or a day
on which banks are required or permitted to be closed in the State of New York.
"Closing Date" shall have the meaning set forth in the Purchase Agreement.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Common Special Distribution" shall have the meaning ascribed thereto in
the Certificate of Designation for the Convertible Preferred Stock.
"Common Stock" shall mean (except where the context otherwise indicates)
the Common Stock, par value $0.01 per share, of Company, and any capital stock
into which such Common Stock may thereafter be changed, and shall also include
(i) capital stock of Company of any other class (regardless of how denominated)
issued to the holders of shares of Common Stock upon any reclassification
thereof which is also not preferred as to dividends or assets over any other
class of stock of Company and which is not subject to redemption and (ii) shares
of common stock of any successor or acquiring corporation (as defined in Section
4.4) received by or distributed to the holders of Common Stock of Company in the
circumstances contemplated by Section 4.4.
"Convertible Preferred Stock" shall mean the Series B Convertible Preferred
Stock of Company and the Series C Convertible Preferred Stock of Company, in
each case having a par value of $.01 per share.
"Convertible Securities" shall mean evidences of indebtedness, shares of
stock or other securities which are convertible into or exchangeable, with or
without payment of additional consideration in cash or property, for Additional
Shares of Common Stock, either immediately or upon the occurrence of a specified
date or a specified event.
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"Current Market Price" shall mean, in respect of any share of Common Stock
on any date herein specified, the average of the daily market prices for the
five consecutive Business Days before such date. The daily market price for each
such Business Day shall be (i) the last sale price on such day on the NYSE or
such other principal stock exchange or NASDAQ Stock Market ("NASDAQ") on which
such Common Stock is then listed or admitted to trading, (ii) if no sale takes
place on such day on any such exchange or NASDAQ, the average of the last
reported closing bid and asked prices on such day as officially quoted on any
such exchange or NASDAQ, (iii) if the Common Stock is not then listed or
admitted to trading on any stock exchange or NASDAQ, the average of the last
reported closing bid and asked prices on such day in the over-the-counter
market, as furnished by the National Association of Securities Dealers Automatic
Quotation System or the National Quotation Bureau, Inc., (iv) if neither such
corporation at the time is engaged in the business of reporting such prices, as
furnished by any similar firm then engaged in such business, or (v) if there is
no such firm, as furnished by any member of the NASD selected mutually by the
Majority Holders and Company or, if they cannot agree upon such selection, as
selected by two such members of the NASD, one of which shall be selected by the
Majority Holders and one of which shall be selected by Company.
"Current Warrant Price" shall mean $125,000,000, subject to adjustment as
provided herein, provided that the Current Warrant Price shall not exceed the
Maximum Aggregate Price.
"Diluted Common Stock" as of any date means the aggregate number of Fully
Diluted Outstanding shares of Common Stock excluding: (i) any shares of Common
Stock issued or issuable after the date hereof in a merger or acquisition or in
a public offering for cash at not less than the then fair market value as
determined in good faith by the Company's Board of Directors; (ii) any shares of
Common Stock issued or issuable after the date hereof in respect of "out of the
money" employee and director stock options outstanding on the date hereof; (iii)
any shares of Common Stock issued or issuable after the date hereof in respect
of trust originated preferred securities issued by FINOVA Finance Trust and
outstanding on the date hereof; (iv) any shares of Common Stock or Convertible
Securities issued after the date hereof in satisfaction of the payment of any
"Upside Distribution" or "Downside Distribution" pursuant to the terms of the
Purchase Agreement or the Convertible Preferred Stock; and (v) any other shares
of Common Stock or Convertible Securities issued or issuable after the date
hereof that may otherwise be agreed to by the Majority Holders and Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"Exercise Period" shall mean the period during which this Warrant is
exercisable pursuant to Section 2.1.
"Expiration Date" shall mean _________ __, 2011.
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"Fully Diluted Outstanding" shall mean, when used with reference to Common
Stock, at any date as of which the number of shares thereof is to be determined,
all shares of Common Stock Outstanding at such date and all shares of Common
Stock remaining issuable by Company in respect of (i) this Warrant on such date
(whether or not this Warrant is then exercisable), and (ii) all other options,
rights or warrants to purchase, or securities exchangeable or convertible into,
shares of Common Stock, outstanding on such date, whether or not such options,
rights, warrants or other securities are then vested, exercisable, or
convertible.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as from time to time in effect.
"Holder" shall mean the Person in whose name the Warrant set forth herein
is registered on the books of Company maintained for such purpose.
"Leucadia" shall mean Leucadia National Corporation, a New York
corporation, or any successor corporation.
"Majority Holders" shall mean the holders of Warrants exercisable for in
excess of 50% of the aggregate percentage of the Diluted Common Stock then
purchasable upon exercise of all Warrants, whether or not then exercisable.
"Maximum Aggregate Price" shall mean $125,000,000, subject to reduction
pursuant to Section 4 hereof or to reflect any partial exercise or transfer of
the Warrant.
"Maximum Percentage" shall mean twenty percent (20%), subject to adjustment
in the event of a partial exercise or transfer of this Warrant.
"NASD" shall mean the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Other Property" shall have the meaning set forth in Section 4.4.
"Outstanding" shall mean, when used with reference to Common Stock, at any
date as of which the number of shares thereof is to be determined, all issued
shares of Common Stock, except shares then owned or held by or for the account
of Company or any subsidiary thereof, and shall include all shares issuable in
respect of outstanding scrip or any certificates representing fractional
interests in shares of Common Stock.
"Permitted Issuances" shall mean the issuance of: (i) any shares of Common
Stock issued upon conversion of the Convertible Preferred Stock; (ii) any shares
of Common Stock issued or issuable after the date hereof in a merger or
acquisition or in a public offering for cash at not less than the then fair
market value as determined in good faith by the Company's Board of Directors;
(iii) any shares of Common Stock issued or issuable after the date hereof in
respect of "out of the money" employee and director stock options or above
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target performance-based restricted stock outstanding on the date hereof; (iv)
any shares of Common Stock issued or issuable after the date hereof in respect
of trust originated preferred securities issued by FINOVA Finance Trust and
outstanding on the date hereof; and (v) any other shares of Common Stock or
Convertible Securities issued or issuable after the date hereof that may
otherwise be agreed to by Majority Holders and Company.
"Person" shall mean any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, incorporated organization,
association, corporation, institution, public benefit corporation, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof).
"Purchase Agreement" shall mean the Securities Purchase Agreement dated as
of December 20, 2000 by and between Company and Leucadia, as the same may be
amended or restated from time to time by such parties.
"Restricted Common Stock" shall mean shares of Common Stock which are, or
which upon their issuance upon exercise of this Warrant would be, evidenced by a
certificate bearing the restrictive legend set forth in Section 9.1(a).
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Transfer" shall mean any disposition of any Warrant or Warrant Stock or of
any interest in either thereof, which would constitute a sale thereof within the
meaning of the Securities Act.
"Transfer Notice" shall have the meaning set forth in Section 9.2.
"Warrant Price" shall mean an amount equal to the product of (i) a
fraction, the numerator of which is the percentage of the Diluted Common Stock
being purchased upon any exercise of this Warrant pursuant to Section 2.1 and
the denominator of which is the Maximum Percentage, multiplied by (ii) the
Current Warrant Price as of the date of such exercise.
"Warrants" shall mean the warrants to purchase shares of Common Stock
represented by this Warrant.
"Warrant Stock" shall mean the shares of Common Stock purchased upon the
exercise of the Warrant.
2. EXERCISE OF WARRANT
2.1. MANNER OF EXERCISE. From and after the third anniversary of the
Closing Date (subject to earlier exercisability as described in this Section
2.1) and until 5:00 P.M., New York time, on the Expiration Date (the "Exercise
Period"), Holder may exercise this Warrant, on any Business Day, in whole or in
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part as provided herein; PROVIDED, HOWEVER, that this Warrant may only be
exercised in part if exercised in respect of a number of shares of Common Stock
representing at least one percent (1%) of the Diluted Common Stock as of the
date of such partial exercise of this Warrant, after giving effect to such
partial exercise of this Warrant.
In the event of a partial exercise, (a) the Maximum Percentage for the
unexercised portion of the Warrant shall be reduced to a fraction expressed as a
percentage, the numerator of which is the difference between (x) the maximum
number of shares of Common Stock into which the Warrant is then exercisable
(prior to such partial exercise) and (y) the number of shares of Common Stock to
be acquired in the partial exercise, and the denominator of which is the sum of
(x) the actual number of shares of Common Stock outstanding and (y) the
additional number of shares of Common Stock to be outstanding after giving
effect to such partial exercise; and (b) the Maximum Aggregate Price for the
remaining portion of the Warrant shall be reduced the product of (x) the Maximum
Aggregate Price in effect immediately before giving effect to such partial
exercise and (y) a fraction the numerator of which is the result of (i) the
total number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such partial exercise minus (ii) the number of shares of
Common Stock to be issued pursuant to the partial exercise, and the denominator
of which is the total number of shares for which the Warrant is exercisable
immediately prior to such partial exercise.
In order to exercise this Warrant, in whole or in part, Holder shall
deliver to Company at its principal office at 4800 North Scottsdale Road,
Scottsdale, Arizona 85251-7623 or at the office or agency designated by Company
pursuant to Section 12, (i) a written notice of Holder's election to exercise
this Warrant, which notice shall specify the percentage of the Diluted Common
Stock to be purchased, (ii) payment of the Warrant Price and (iii) this Warrant.
Such notice shall be substantially in the form of the subscription form
appearing at the end of this Warrant as Exhibit A, duly executed by Holder or
its agent or attorney. Upon receipt thereof, Company shall, as promptly as
practicable, and in any event within five Business Days thereafter, execute or
cause to be executed and deliver or cause to be delivered to Holder a
certificate or certificates representing the aggregate number of full shares of
Common Stock issuable upon such exercise, together with cash in lieu of any
fraction of a share, as hereinafter provided. The stock certificate or
certificates so delivered shall be, to the extent possible, in such denomination
or denominations as such Holder shall request in the notice and shall be
registered in the name of Holder or, subject to Section 9, such other name as
shall be designated in the notice. This Warrant shall be deemed to have been
exercised and such certificate or certificates shall be deemed to have been
issued, and Holder or any other Person so designated to be named therein shall
be deemed to have become a holder of record of such shares for all purposes, as
of the date the notice, together with the cash or check or other payment as
provided below and this Warrant, is received by Company as described above and
all taxes required to be paid by Holder, if any, pursuant to Section 2.2 prior
to the issuance of such shares have been paid. If this Warrant shall have been
exercised in part, Company shall, at the time of delivery of the certificate or
certificates representing Warrant Stock, deliver to Holder a new Warrant
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evidencing the rights of Holder to purchase the balance of the percentage of the
Diluted Common Stock in respect of which this Warrant has not been exercised,
which new Warrant shall in all other respects be identical with this Warrant,
or, at the request of Holder, appropriate notation may be made on this Warrant
and the same returned to Holder. Notwithstanding any provision herein to the
contrary, Company shall not be required to register shares in the name of any
Person who acquired this Warrant (or part hereof) or any Warrant Stock otherwise
than in accordance with this Warrant.
Payment of the Warrant Price shall be made at the option of the Holder by
certified or official bank check or wire transfer of immediately available funds
to an account designated by Company, or by the Holder's surrender to Company of
that number of shares of Warrant Stock (or the right to receive such number of
shares) or shares of Common Stock having an aggregate Current Market Price equal
to or greater than the Warrant Price for the percentage of the Diluted Common
Stock then being purchased (including those being surrendered) or a combination
thereof, duly endorsed by or accompanied by appropriate instruments of transfer
duly executed by Holder or by Holder's attorney duly authorized in writing.
If not otherwise then exercisable, this Warrant shall become exercisable
upon the occurrence of an Acceleration Event; provided that in no event shall
this Warrant be exercisable prior to the first anniversary of the Closing Date
(other than as a result of a Bankruptcy Event).
2.2. PAYMENT OF TAXES. All shares of Common Stock issuable upon the
exercise of this Warrant pursuant to the terms hereof shall be validly issued,
fully paid and nonassessable and without any preemptive rights. Company shall
pay all expenses in connection with, and all taxes and other governmental
charges that may be imposed with respect to, the issue or delivery thereof,
unless such tax or charge is imposed by law upon Holder, in which case such
taxes or charges shall be paid by Holder. Company shall not be required,
however, to pay any tax or other charge imposed in connection with any transfer
involved in the issue of any certificate for shares of Common Stock issuable
upon exercise of this Warrant in any name other than that of Holder, and in such
case Company shall not be required to issue or deliver any stock certificate
until such tax or other charge has been paid or it has been established to the
satisfaction of Company that no such tax or other charge is due.
2.3. FRACTIONAL SHARES. Company shall not be required to issue a fractional
share of Common Stock upon exercise of any Warrant. As to any fraction of a
share which the Holder would otherwise be entitled to purchase upon such
exercise, except as otherwise provided in Section 2.1, Company shall pay a cash
adjustment in respect of such final fraction in an amount equal to the same
fraction of the Current Market Price per share of Common Stock on the date of
exercise.
2.4. CONTINUED VALIDITY. A holder of Warrant Shares (other than a holder
who acquires such shares after the same have been publicly sold pursuant to a
Registration Statement under the Securities Act or sold pursuant to Rule 144
thereunder or who may otherwise sell all of such shares without restriction or
limitation pursuant to Rule 144(k) of the Securities Act), shall continue to be
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entitled with respect to such shares to all rights to which it would have been
entitled as Holder under Sections 9, 10 and 14 of this Warrant. Company will, at
the time of each exercise of this Warrant, in whole or in part, upon the request
of the holder of the shares of Common Stock issued upon such exercise hereof,
acknowledge in writing, in form reasonably satisfactory to such holder, its
continuing obligation to afford to such holder all such rights; PROVIDED,
HOWEVER, that if such holder shall fail to make any such request, such failure
shall not affect the continuing obligation of Company to afford to such holder
all such rights.
3. TRANSFER, DIVISION AND COMBINATION
3.1. TRANSFER. Subject to compliance with Section 9 hereof, any transfer of
this Warrant and all rights hereunder, in whole or in part, (i) if made in part,
shall be made only with respect to a specific whole percentage of the Diluted
Common Stock purchasable hereunder and an adjustment shall be made to the
Maximum Percentage and the Maximum Aggregate Price pursuant to the provisions of
Section 2.1 (as if such transfer were treated as a partial exercise of the
Warrant) to reflect the division of this Warrant to one or more Warrants, and
(ii) shall be registered on the books of Company to be maintained for such
purpose, upon surrender of this Warrant at the principal office of Company
referred to in Section 2.1 or the office or agency designated by Company
pursuant to Section 12, together with a written assignment of this Warrant
substantially in the form of Exhibit B hereto duly executed by Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon
the making of such transfer. Upon such surrender and, if required, such payment,
Company shall, subject to Section 9, execute and deliver a new Warrant or
Warrants in the name of the assignee or assignees and in the denomination
specified in such instrument of assignment, and shall issue to the assignor a
new Warrant evidencing the portion of this Warrant not so assigned, and this
Warrant shall promptly be cancelled. A Warrant, if properly assigned in
compliance with Section 9, may be exercised by a new Holder for the purchase of
shares of Common Stock without having a new Warrant issued.
3.2. DIVISION AND COMBINATION. Subject to Section 9, this Warrant may be
divided or combined with other Warrants upon presentation hereof at the
aforesaid office or agency of Company, together with a written notice specifying
the names and denominations in which new Warrants are to be issued, signed by
Holder or its agent or attorney. In the event that this Warrant is divided or
combined, an adjustment shall be made to the Maximum Percentage and the Maximum
Aggregate Price to reflect the division of this Warrant to one or more Warrants
or the combination of one or more Warrants into one Warrant, as applicable.
Subject to compliance with Section 3.1 and with Section 9, as to any transfer
which may be involved in such division or combination, Company shall execute and
deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be
divided or combined in accordance with such notice.
3.3. EXPENSES. Company shall prepare, issue and deliver at its own expense
(other than transfer taxes) the new Warrant or Warrants under this Section 3.
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3.4. MAINTENANCE OF BOOKS. Company agrees to maintain, at its aforesaid
office or agency, books for the registration and the registration of transfer of
the Warrants.
4. ADJUSTMENT TO THE CURRENT WARRANT PRICE
No adjustment shall be made to the Current Warrant Price in respect of any
Permitted Issuances. In no event shall the Current Warrant Price exceed the
Maximum Aggregate Price. Subject to the foregoing, the Current Warrant Price
shall be subject to adjustment from time to time as set forth in this Section 4.
Company shall give each Holder notice of any event described below which
requires an adjustment pursuant to this Section 4 at the time of such event.
4.1. STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any time Company
shall:
(a) take a record of the holders of its Common Stock for the purpose of
entitling them to receive a dividend payable in, or other distribution of,
Additional Shares of Common Stock,
(b) subdivide its outstanding shares of Common Stock into a larger number
of shares of Common Stock, or
(c) combine its outstanding shares of Common Stock into a smaller number of
shares of Common Stock,
then in each such case no adjustment shall be made to the Current Warrant Price
and the effect for purposes hereof of any such act shall be limited to the
adjustment of Diluted Common Stock for purposes of the provisions of the
Warrant.
4.2. CERTAIN OTHER DISTRIBUTIONS AND ADJUSTMENTS.
(a) If at any time Company shall take a record of the holders of its Common
Stock for the purpose of entitling them to receive any dividend or other
distribution (other than the Common Special Distribution or the Rights Offering)
of:
(i) cash (other than ordinary cash dividends paid in accordance with
the dividend policy established by the Board of Directors),
(ii) any evidences of its indebtedness, any shares of its stock or any
other securities or property of any nature whatsoever (other than cash,
Convertible Securities or Additional Shares of Common Stock), or
(iii) any warrants or other rights (other than pursuant the Rights
Offering) to subscribe for or purchase any evidences of its indebtedness,
any shares of its stock or any other securities or property of any nature
whatsoever (other than cash, Convertible Securities or Additional Shares of
Common Stock),
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then at the time of such dividend or distribution the Current Warrant Price
shall be adjusted to equal (x) the Current Warrant Price immediately prior to
such adjustment MINUS (y) the product of (A) the aggregate amount of cash so
distributable, and the fair value (as determined in good faith by the Company's
Board of Directors and, unless waived by the Majority Holders, supported by an
opinion from an investment banking firm of recognized national standing
acceptable to the Majority Holders) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or other
subscription or purchase rights so distributable, MULTIPLIED BY the (B) the
Maximum Percentage.
(b) A reclassification of the Common Stock (other than a change in par
value, or from par value to no par value or from no par value to par value) into
shares of Common Stock and shares of any other class of stock shall be deemed a
distribution by Company to the holders of its Common Stock of such shares of
such other class of stock within the meaning of paragraph (a) above and, if the
outstanding shares of Common Stock shall be changed into a larger or smaller
number of shares of Common Stock as a part of such reclassification, such change
shall be deemed a subdivision or combination, as the case may be, of the
outstanding shares of Common Stock within the meaning of Section 4.1.
4.3. OTHER PROVISIONS APPLICABLE TO ADJUSTMENTS UNDER THIS SECTION. The
following provisions shall be applicable to the making of adjustments of the
Current Warrant Price provided for in this Section 4:
(a) WHEN ADJUSTMENTS TO BE MADE. The adjustments required by this Section 4
shall be made whenever and as often as any specified event requiring an
adjustment shall occur, except that any adjustment of the Current Warrant Price
that would otherwise be required may be postponed up to, but not beyond the date
of exercise if such adjustment either by itself or with other adjustments not
previously made subtracts less than one percent (1%) to the Current Warrant
Price immediately prior to such adjustment. Any adjustment representing a change
of less than such minimum amount (except as aforesaid) which is postponed shall
be carried forward and made as soon as such adjustment, together with other
adjustments required by this Section 4 and not previously made, would result in
a minimum adjustment or on the date of exercise. For the purpose of any
adjustment, any specified event shall be deemed to have occurred at the close of
business on the date of its occurrence.
(b) FRACTIONAL INTERESTS. In computing adjustments under this Section 4,
fractional interests in Common Stock shall be taken into account to the nearest
1/10th of a share.
(c) WHEN ADJUSTMENT NOT REQUIRED. If Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to receive a
dividend or distribution or subscription or purchase rights and shall,
thereafter and before the distribution to stockholders thereof, legally abandon
its plan to pay or deliver such dividend, distribution, subscription or purchase
rights, then thereafter no adjustment shall be required by reason of the taking
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of such record and any such adjustment previously made in respect thereof shall
be rescinded and annulled.
(d) ESCROW OF WARRANT STOCK. If after any property becomes distributable
pursuant to this Section 4 by reason of the taking of any record of the holders
of Common Stock, but prior to the occurrence of the event for which such record
is taken, and Holder exercises this Warrant, any Additional Shares of Common
Stock issuable upon exercise by reason of such adjustment shall be deemed the
last shares of Common Stock for which this Warrant is exercised (notwithstanding
any other provision to the contrary herein) and such shares or other property
shall be held in escrow for Holder by Company to be issued to Holder upon and to
the extent that the event actually takes place, upon payment of the then Current
Warrant Price. Notwithstanding any other provision to the contrary herein, if
the event for which such record was taken fails to occur or is rescinded, then
such escrowed shares shall be cancelled by Company and escrowed property
returned to Company.
(e) CHALLENGE TO GOOD FAITH DETERMINATION. Whenever the Board of Directors
of Company shall be required to make a determination in good faith of the fair
value of any item under this Section 4, such determination may be challenged in
good faith by the Majority Holders and any dispute shall be resolved by an
investment banking or valuation firm of recognized national standing selected by
Company and acceptable to the Majority Holders.
4.4. REORGANIZATION, RECLASSIFICATION, MERGER, CONSOLIDATION OR DISPOSITION
OF ASSETS. In case Company shall reorganize its capital, reclassify its capital
stock, consolidate or merge with or into another corporation (where Company is
not the surviving corporation or where there is a change in or distribution with
respect to the Common Stock of Company), or sell, transfer or otherwise dispose
of all or substantially all its property, assets or business to another
corporation and, pursuant to the terms of such reorganization, reclassification,
merger, consolidation or disposition of assets, shares of common stock of the
successor or acquiring corporation, or any cash, shares of stock or other
securities or property of any nature whatsoever (including warrants or other
subscription or purchase rights) in addition to or in lieu of common stock of
the successor or acquiring corporation ("Other Property"), are to be received by
or distributed to the holders of Common Stock of Company, then each Holder shall
have the right thereafter to receive, upon exercise of such Warrant, the number
of shares of common stock of the successor or acquiring corporation or of
Company, if it is the surviving corporation, and Other Property receivable upon
or as a result of such reorganization, reclassification, merger, consolidation
or disposition of assets by a holder of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such event. In case of
any such reorganization, reclassification, merger, consolidation or disposition
of assets, the successor or acquiring corporation (if other than Company) shall
expressly assume the due and punctual observance and performance of each and
every covenant and condition of this Warrant to be performed and observed by
Company and all the obligations and liabilities hereunder, subject to such
modifications as may be deemed appropriate (as determined by resolution of the
Board of Directors of Company) in order to provide for adjustments which shall
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be as nearly equivalent as practicable to the adjustments provided for in this
Section 4. For purposes of this Section 4.4, "common stock of the successor or
acquiring corporation" shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock
of such corporation and which is not subject to redemption and shall also
include any evidences of indebtedness, shares of stock or other securities which
are convertible into or exchangeable for any such stock, either immediately or
upon the arrival of a specified date or the happening of a specified event and
any warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 4.4 shall similarly apply to successive
reorganizations, reclassifications, mergers, consolidations or disposition of
assets.
4.5. OTHER ACTION AFFECTING COMMON STOCK. In case at any time or from time
to time Company shall take any action in respect of its Common Stock, other than
any action described in this Section 4, then, unless such action will not have a
materially adverse effect upon the rights of the Holder, the Current Warrant
Price thereof shall be adjusted in such manner as may be equitable in the
circumstances.
5. NOTICES TO WARRANT HOLDER
5.1. NOTICE OF ADJUSTMENTS. Whenever the price at which a share of such
Common Stock may be purchased upon exercise of the Warrants shall be adjusted
pursuant to Section 4, Company shall forthwith prepare a certificate to be
executed by the Chief Financial Officer of Company setting forth, in reasonable
detail, the event requiring the adjustment and the method by which such
adjustment was calculated, specifying the change in the Current Warrant Price
and, if such adjustment was made pursuant to Section 4.4 or 4.5, describing the
number and kind of any other shares of stock or Other Property for which this
Warrant is exercisable, after giving effect to such adjustment or change.
Company shall promptly cause a signed copy of such certificate to be delivered
to each Holder in accordance with Section 14.2. Company shall keep at its office
or agency designated pursuant to Section 12 copies of all such certificates and
cause the same to be available for inspection at said office during normal
business hours by any Holder or any prospective purchaser of a Warrant
designated by a Holder thereof.
5.2. NOTICE OF CORPORATE ACTION. If at any time
(a) Company shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend or other distribution, or any
right to subscribe for or purchase any evidences of its indebtedness, any shares
of stock of any class or any other securities or property, or to receive any
other right, or
(b) there shall be any capital reorganization of Company, any
reclassification or recapitalization of the capital stock of Company or any
consolidation or merger of Company with, or any sale, transfer or other
disposition of all or substantially all the property, assets or business of
Company to, another corporation, or
(c) there shall be a voluntary or involuntary dissolution, liquidation or
winding up of Company;
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then, in any one or more of such cases, Company shall give to Holder (i) at
least 10 days' prior written notice of the date on which a record date shall be
selected for such dividend, distribution or right or for determining rights to
vote in respect of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, and (ii) in the case of any such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up, at least 10 days' prior written notice of the date when the same shall take
place. Such notice in accordance with the foregoing clause also shall specify
(i) the date on which any such record is to be taken for the purpose of such
dividend, distribution or right, the date on which the holders of Common Stock
shall be entitled to any such dividend, distribution or right, and the amount
and character thereof, and (ii) the date on which any such reorganization,
reclassification, merger, consolidation, sale, transfer, disposition,
dissolution, liquidation or winding up is expected to take place and the time,
if any such time is to be fixed, as of which the holders of Common Stock shall
be entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reorganization, reclassification, merger,
consolidation, sale, transfer, disposition, dissolution, liquidation or winding
up. Each such written notice shall be sufficiently given if addressed to Holder
at the last address of Holder appearing on the books of Company and delivered in
accordance with Section 14.2.
6. NO IMPAIRMENT
Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, but will at all times in good faith assist in
the carrying out of all such terms and in the taking of all such actions as may
be necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, Company will take all such
action as may be necessary or appropriate in order that Company may validly and
legally issue fully paid and nonassessable shares of Common Stock upon the
exercise of this Warrant, including taking such action as is necessary for the
Current Warrant Price to be not less than the par value of the shares of Common
Stock issuable upon exercise of this Warrant, and use its commercially
reasonable efforts to obtain all such authorizations, exemptions or consents
from any public regulatory body having jurisdiction thereof as may be necessary
to enable Company to perform its obligations under this Warrant.
Upon the request of Holder, Company will at any times during the period
this Warrant is outstanding acknowledge in writing, in form satisfactory to
Holder, the continuing validity of this Warrant and the obligations of Company
hereunder.
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7. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR
APPROVAL OF ANY GOVERNMENTAL AUTHORITY
From and after the Closing Date, Company shall at all times reserve and
keep available for issue upon the exercise of Warrants such number of its
authorized but unissued shares of Common Stock as will be sufficient to permit
the exercise in full of all outstanding Warrants. All shares of Common Stock
which shall be so issuable, when issued upon exercise of any Warrant and payment
therefor in accordance with the terms of such Warrant, shall be duly and validly
issued and fully paid and nonassessable, and not subject to preemptive rights.
Before taking any action which would result in an adjustment in the Current
Warrant Price, Company shall obtain all such authorizations or exemptions
thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
If any shares of Common Stock required to be reserved for issuance upon
exercise of Warrants require registration or qualification with any governmental
authority or other governmental approval or filing under any federal or state
law (otherwise than as provided in Section 9) before such shares may be so
issued, Company will in good faith and as expeditiously as possible and at its
expense endeavor to cause such shares to be duly registered or such approval to
be obtained or filing made.
8. TAKING OF RECORD; STOCK AND WARRANT TRANSFER BOOKS
In the case of all dividends or other distributions by Company to the
holders of its Common Stock with respect to which any provision of Section 4
refers to the taking of a record of such holders, Company will in each such case
take such a record and will take such record as of the close of business on a
Business Day. Company will not at any time, except upon dissolution, liquidation
or winding up of Company, close its stock transfer books or Warrant transfer
books so as to result in preventing or delaying the exercise or transfer of any
Warrant.
9. RESTRICTIONS ON TRANSFERABILITY
The Warrants and Warrant Stock shall not be transferable, other than to an
Affiliate of Leucadia prior to _____________, 200_. [Three years from Closing
Date.] The Warrants and the Warrant Stock shall not be transferred, hypothecated
or assigned before satisfaction of the conditions specified in this Section 9,
which conditions are intended to ensure compliance with the provisions of the
Securities Act with respect to the Transfer of any Warrant or any Warrant Stock.
Holder, by acceptance of this Warrant, agrees to be bound by the provisions of
this Section 9.
9.1. RESTRICTIVE LEGEND.
(a) Except as otherwise provided in this Section 9, each certificate for
Warrant Stock initially issued upon the exercise of this Warrant, and each
certificate for Warrant Stock issued to any subsequent transferee of any such
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certificate, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or any state securities
or "blue sky" laws and may not be transferred in violation of such Act
or laws or the rules and regulations thereunder."
(b) Except as otherwise provided in this Section 9, each Warrant shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"This Warrant and the securities represented hereby have not been
registered under the Securities Act of 1933, as amended, or any state
securities or "blue sky" laws and may not be transferred in violation
of such Act or laws, or the rules and regulations thereunder or the
provisions of this Warrant."
9.2. NOTICE OF PROPOSED TRANSFERS; REQUESTS FOR REGISTRATION. Prior to or
promptly following any Transfer of any Warrants or any shares of Restricted
Common Stock, the holder of such Warrants or Restricted Common Stock shall give
written notice (a "Transfer Notice") to Company of such Transfer. In connection
with any Transfer, the holder requesting the Transfer shall provide to Company
evidence reasonably satisfactory to it that the Transfer is to a "qualified
institutional buyer" or an "accredited investor," as such terms are defined in
Rules 144A and 501, respectively, of the Securities Act, and the Transfer is
exempt from the registration requirements of the Securities Act and state
securities or "blue sky" laws, or if the Transfer is to an entity or person
other than a "qualified institutional buyer," Company shall be provided with an
opinion of counsel reasonably satisfactory to it that the Transfer is so exempt
from the registration requirements of the Securities Act and state securities
laws. Each certificate, if any, evidencing such shares of Restricted Common
Stock issued upon such Transfer shall bear the restrictive legend set forth in
Section 9.1(a), and each Warrant issued upon such Transfer shall bear the
restrictive legend set forth in Section 9.1(b), unless in the opinion of counsel
to such holder which is reasonably acceptable to Company such legend is not
required in order to ensure compliance with the Securities Act.
The holders of Warrants and Warrant Stock shall have the right to request
registration of such Warrant Stock pursuant to Sections 9.3 and 9.4.
9.3. REQUIRED REGISTRATION. After receipt of a written request from the
holders of Warrants and/or Warrant Stock representing at least either (x) an
aggregate of twenty percent (20%) of the total of (i) all shares of Warrant
Stock then subject to purchase upon exercise of all Warrants and (ii) all shares
of Warrant Stock then outstanding and which are Restricted Common Stock, or (y)
such shares of Warrant Stock having a minimum anticipated aggregate offering
price of at least $25,000,000, requesting that Company effect the registration
of Warrant Stock issuable upon the exercise of such holder's Warrants or of any
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of such holder's Warrant Stock under the Securities Act and specifying the
intended method or methods of disposition thereof, Company shall promptly notify
all holders of Warrants and Warrant Stock in writing of the receipt of such
request and each such holder, in lieu of exercising its rights under Section
9.4, may elect (by written notice sent to Company within ten Business Days from
the date of such holder's receipt of the aforementioned Company's notice) to
have its shares of Warrant Stock included in such registration thereof pursuant
to this Section 9.3. Thereupon Company shall, as expeditiously as is possible,
use its commercially reasonable efforts to effect the registration under the
Securities Act of all shares of Warrant Stock which Company has been so
requested to register by such holders for sale, all to the extent required to
permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Warrant Stock so registered; PROVIDED, HOWEVER,
that Company shall not be required to effect more than an aggregate of three
registrations of any Warrant Stock pursuant to this Section 9.3.
9.4. INCIDENTAL REGISTRATION. If Company at any time commencing one year
after the Closing Date proposes to file on its behalf and/or on behalf of any of
its security holders (the "demanding security holders") a Registration Statement
under the Securities Act on any form (other than a Registration Statement on
Form S-4 or S-8 or any successor form for securities to be offered in a
transaction of the type referred to in Rule 145 under the Securities Act or to
employees of Company pursuant to any employee benefit plan, respectively) for
the general registration of securities to be sold for cash with respect to its
Common Stock (as defined in Section 3(a)(11) of the Exchange Act) of Company, it
will give written notice to all Holders of Warrants or Holders of Warrant Stock
at least 15 days before the initial filing with the Commission of such
Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered by Company. The notice
shall offer to include in such filing the aggregate number of shares of Warrant
Stock, and the number of shares of Common Stock for which this Warrant is
exercisable, as such holders may request.
Each Holder of any such Warrants or any such Warrant Stock desiring to have
Warrant Stock registered under this Section 9.4 shall advise Company in writing
within 10 days after the date of receipt of such offer from Company, setting
forth the amount of such Warrant Stock for which registration is requested.
Company shall thereupon include in such filing the number of shares of Warrant
Stock for which registration is so requested, subject to the next sentence,
provided that Company may, in its sole discretion, determine to abandon any such
registration. If the managing underwriter of a proposed public offering shall
advise Company in writing that, in its opinion, the distribution of the Warrant
Stock requested to be included in the registration concurrently with the
securities being registered by Company or such demanding security holder would
materially and adversely affect the distribution of such securities by Company
or such demanding security holder, then the Holders of Warrant Stock shall
reduce the amount of securities each intended to distribute through such
offering on a pro rata basis. Except as otherwise provided in Section 9.6, all
expenses of such registration shall be borne by Company.
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9.5. REGISTRATION PROCEDURES. If Company is required by the provisions of
this Section 9 to use its commercially reasonable efforts to effect the
registration of any of its securities under the Securities Act, Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities and use its commercially reasonable efforts to cause
such Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof, but not
to exceed 180 days;
(b) prepare and file with the Commission such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the sale or other
disposition of all securities covered by such Registration Statement until the
earlier of such time as all of such securities have been disposed of in a public
offering or the expiration of 180 days;
(c) furnish to such selling security holders such number of copies of a
summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its commercially reasonable efforts to register or qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions within the United States and Puerto Rico as
each holder of such securities shall request (PROVIDED, HOWEVER, that Company
shall not be obligated to qualify as a foreign corporation to do business under
the laws of any jurisdiction in which it is not then qualified or to file any
general consent to service or process), and do such other reasonable acts and
things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such Registration
Statement;
(e) furnish, at the request of any Holder requesting registration of
Warrant Stock pursuant to Section 9.3, on the date that such shares of Warrant
Stock are delivered to the underwriters for sale pursuant to such registration
or, if such Warrant Stock is not being sold through underwriters, on the date
that the Registration Statement with respect to such shares of Warrant Stock
becomes effective, (1) an opinion, dated such date, of the counsel representing
Company for the purposes of such registration, addressed to the underwriters, if
any, and if such Warrant Stock is not being sold through underwriters, then to
the holders making such request, in customary form and covering matters of the
type customarily covered in such legal opinions; and (2) a comfort letter dated
such date, from the independent certified public accountants of Company,
addressed to the underwriters, if any, and if such Warrant Stock is not being
sold through underwriters, then to the holder making such request and, if such
accountants refuse to deliver such letter to such holder, then to Company in a
customary form and covering matters of the type customarily covered by such
comfort letters as the underwriters or such holders shall reasonably request;
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(f) enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such securities; and
(g) otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, but not later than 18
months after the effective date of the Registration Statement, an earnings
statement covering a period of at least 12 months beginning after the effective
date of such Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of Company to take any
action pursuant to this Section 9 in respect of the securities which are to be
registered at the request of any holder of Warrants or Warrant Stock that such
holder shall (i) furnish to Company such information regarding the securities
held by such holder and the intended method of disposition thereof as Company
shall reasonably request and as shall be required in connection with the action
taken by Company and (ii) in connection with an underwritten offering, enter
into customary agreements (including an underwriting agreement and a custody
agreement, each in customary form, and a lock-up agreement with respect to such
holder's equity securities of Company as may be requested by the managing
underwriter).
9.6. EXPENSES. All expenses incurred in complying with Section 9,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), printing expenses, fees and
disbursements of counsel for Company, the reasonable fees and expenses of one
counsel for the selling security holders (selected by those holding a majority
of the shares being registered), expenses of any special audits incident to or
required by any such registration and expenses of complying with the securities
or blue sky laws of any jurisdictions pursuant to Section 9.5(d), shall be paid
by Company, except that
(a) all such expenses in connection with any amendment or supplement to the
Registration Statement or prospectus filed more than 180 days after the
effective date of such Registration Statement because any holder of Warrant
Stock has not effected the disposition of the securities requested to be
registered shall be paid by such holder; and
(b) Company shall not be liable for any fees, discounts or commissions to
any underwriter or any fees or disbursements of counsel for any underwriter in
respect of the securities sold by such holder of Warrant Stock.
9.7. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any of the Warrant Stock under the
Securities Act pursuant to this Section 9, Company shall indemnify and hold
harmless the holder of such Warrant Stock, such holder's directors and officers,
and each other Person (including each underwriter) who participated in the
offering of such Warrant Stock and each other Person, if any, who controls such
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holder or such participating Person within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several, to which
such holder or any such director or officer or participating Person or
controlling Person may become subject under the Securities Act or any other
statute or at common law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any alleged
untrue statement of any material fact contained, on the effective date thereof,
in any Registration Statement under which such securities were registered under
the Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or (ii) any alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse such holder or such
director, officer or participating Person or controlling Person for any legal or
any other expenses reasonably incurred by such holder or such director, officer
or participating Person or controlling Person in connection with investigating
or defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
alleged untrue statement or alleged omission made in such Registration
Statement, preliminary prospectus, prospectus or amendment or supplement in
reliance upon and in conformity with written information furnished to Company by
such holder specifically for use therein or (in the case of any registration
pursuant to Section 9.3) so furnished for such purposes by any underwriter. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or such director, officer or participating
Person or controlling Person, and shall survive the transfer of such securities
by such holder.
(b) Each holder of any Warrant Stock, by acceptance thereof, agrees to
indemnify and hold harmless Company, its directors and officers and each other
Person, if any, who controls Company within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, to which
Company or any such director or officer or any such Person may become subject
under the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon information in writing provided to Company by such holder
of such Warrant Stock specifically for use in, and contained on the effective
date thereof in, any Registration Statement under which securities were
registered under the Securities Act at the request of such holder, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, but in an amount not to exceed the net proceeds received
by such holder in the offering.
(c) If the indemnification provided for in this Section 9 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
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such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The liability of any holder of Warrant Stock
hereunder shall not exceed the net proceeds received by it in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.7(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
9.8. TERMINATION OF RESTRICTIONS. Notwithstanding the foregoing provisions
of Section 9, the restrictions imposed by this Section upon the transferability
of the Warrants, the Warrant Stock and the Restricted Common Stock (or Common
Stock issuable upon the exercise of the Warrants) and the legend requirements of
Section 9.1 shall terminate as to any particular Warrant or share of Warrant
Stock or Restricted Common Stock (or Common Stock issuable upon the exercise of
the Warrants) (i) when and so long as such security shall have been effectively
registered under the Securities Act and disposed of pursuant thereto or (ii)
when Company shall have received an opinion of counsel reasonably satisfactory
to it that such shares may be transferred without registration thereof under the
Securities Act. Whenever the restrictions imposed by Section 9 shall terminate
as to this Warrant, as hereinabove provided, the Holder hereof shall be entitled
to receive from Company, at the expense of Company, a new Warrant without the
restrictive legend set forth in Section 9.1(b). Whenever the restrictions
imposed by this Section shall terminate as to any share of Restricted Common
Stock, as hereinabove provided, the holder thereof shall be entitled to receive
from Company, at Company's expense, a new certificate representing such Common
Stock not bearing the restrictive legend set forth in Section 9.1(a).
9.9. LISTING ON SECURITIES EXCHANGE. Company will, at its expense, list on
the NYSE (or such other principal exchange on which it lists its Common Stock),
maintain and, when necessary, increase such listing of, all shares of Common
Stock issued or, to the extent permissible under the applicable securities
exchange rules, issuable upon the exercise of this Warrant so long as any shares
of Common Stock shall be so listed during any such Exercise Period.
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9.10. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding the other
provisions of Section 9:
(a) Company shall not be obligated to register the Warrant Stock of any
holder if, in the opinion of counsel to Company reasonably satisfactory to the
holder and its counsel (or, if the holder has engaged an investment banking
firm, to such investment banking firm and its counsel), the sale or other
disposition of such holder's Warrant Stock, in the manner proposed by such
holder (or by such investment banking firm), may be effected without registering
such Warrant Stock under the Securities Act in reliance upon Rule 144(k) under
the Securities Act;
(b) Company shall not be obligated to register the Warrant Stock of any
holder pursuant to Section 9.3, if Company has had a registration statement,
under which such holder had a right to have its Warrant Stock included pursuant
to Sections 9.3 or 9.4, declared effective within six months prior to the date
of the request pursuant to Section 9.3; and
(c) Company shall have the right to delay the filing or effectiveness of a
registration statement required pursuant to Section 9.3 hereof during one or
more periods aggregating not more than 180 days in any twelve-month period in
the event that (i) Company would, in accordance with the advice of its counsel,
be required to disclose in the prospectus information not otherwise then
required by law to be publicly disclosed and (ii) in the judgment of the
Company's Board of Directors, there is a reasonable likelihood that such
disclosure, or any other action to be taken in connection with the prospectus,
would materially and adversely affect any existing or prospective material
business situation, transaction or negotiation or otherwise materially and
adversely affect Company.
9.11. SELECTION OF MANAGING UNDERWRITERS. The managing underwriter or
underwriters for any offering of Warrant Stock to be registered pursuant to
Section 9.3 shall be selected by the holders of a majority of the shares being
so registered (other than any shares being registered pursuant to Section 9.4)
and shall be reasonably acceptable to Company.
10. SUPPLYING INFORMATION
Company shall cooperate with each Holder of a Warrant and each holder of
Restricted Common Stock in supplying such information as may be reasonably
necessary for such holder to complete and file any information reporting forms
presently or hereafter required by the Commission as a condition to the
availability of an exemption from the Securities Act for the sale of any Warrant
or Restricted Common Stock.
11. LOSS OR MUTILATION
Upon receipt by Company from any Holder of evidence reasonably satisfactory
to it of the ownership of and the loss, theft, destruction or mutilation of this
Warrant and indemnity reasonably satisfactory to it (it being understood that
the written agreement of Leucadia shall be sufficient indemnity), and in case of
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mutilation upon surrender and cancellation hereof, Company will execute and
deliver in lieu hereof a new Warrant of like tenor to such Holder; PROVIDED, in
the case of mutilation, no indemnity shall be required if this Warrant in
identifiable form is surrendered to Company for cancellation.
12. OFFICE OF COMPANY
As long as any of the Warrants remain outstanding, Company shall maintain
an office or agency (which may be the principal executive offices of Company)
where the Warrants may be presented for exercise, registration of transfer,
division or combination as provided in this Warrant.
13. LIMITATION OF LIABILITY
No provision hereof, in the absence of affirmative action by Holder to
purchase shares of Common Stock, and no enumeration herein of the rights or
privileges of Holder hereof, shall give rise to any liability of such Holder for
the purchase price of any Common Stock or as a stockholder of Company, whether
such liability is asserted by Company or by creditors of Company.
14. MISCELLANEOUS
14.1. NONWAIVER AND EXPENSES. No course of dealing or any delay or failure
to exercise any right hereunder on the part of Holder shall operate as a waiver
of such right or otherwise prejudice Holder's rights, powers or remedies. If
Company fails to make, when due, any payments provided for hereunder, or fails
to comply with any other provision of this Warrant, Company shall pay to Holder
such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys' fees, including those of appellate
proceedings, incurred by Holder in collecting any amounts due pursuant hereto or
in otherwise enforcing any of its rights, powers or remedies hereunder.
14.2. NOTICE GENERALLY. Any notice, demand, request, consent, approval,
declaration, delivery or other communication hereunder to be made pursuant to
the provisions of this Warrant shall be sufficiently given or made if in writing
and either delivered in person with receipt acknowledged or sent by registered
or certified mail, return receipt requested, postage prepaid, or by telecopy and
confirmed by telecopy answerback, addressed as follows:
(a) If to any Holder or holder of Warrant Stock, at its last known address
appearing on the books of Company maintained for such purpose.
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(b) If to Company at
The FINOVA Group Inc.
4800 North Scottsdale Road
Scottsdale, Arizona 85251-7623
Attention: William Hallinan, Senior Vice-President,
General Counsel and Secretary
Facsimile No.: (480) 636-4949
with a copy (which shall not
constitute notice) to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Attention: Andrew E. Bogen, Esq.
Facsimile No.: (213) 229-7520
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback, or three (3) Business Days after the same shall have been deposited
in the United States mail. Failure or delay in delivering copies of any notice,
demand, request, approval, declaration, delivery or other communication to the
person designated above to receive a copy shall in no way adversely affect the
effectiveness of such notice, demand, request, approval, declaration, delivery
or other communication.
14.3. REMEDIES. Each holder of Warrant and Warrant Stock, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under Section 9
of this Warrant. Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of Section 9 of this Warrant and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
14.4. SUCCESSORS AND ASSIGNS. Subject to the provisions of Sections 3.1 and
9, this Warrant and the rights evidenced hereby shall inure to the benefit of
and be binding upon the successors of Company and the successors and assigns of
Holder. The provisions of this Warrant are intended to be for the benefit of all
Holders from time to time of this Warrant and, with respect to Section 9 hereof,
holders of Warrant Stock, and shall be enforceable by any such Holder or holder
of Warrant Stock.
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14.5. AMENDMENT. This Warrant and all other Warrants may be modified or
amended or the provisions hereof waived with the written consent of Company and
the Majority Holders.
14.6. SEVERABILITY. Wherever possible, each provision of this Warrant shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Warrant.
14.7. HEADINGS. The headings used in this Warrant are for the convenience
of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
14.8. GOVERNING LAW. This Warrant shall be governed by the laws of the
State of Delaware, without regard to the principles thereof relating to conflict
of laws.
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IN WITNESS WHEREOF, Company has caused this Warrant to be duly executed and
attested by its Secretary or an Assistant Secretary.
Dated: __________, 2000
THE FINOVA GROUP INC.
By:__________________________________
Name:
Title:
Attest:
By:__________________________________
Name:
Title:
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EXHIBIT A
SUBSCRIPTION FORM
[TO BE EXECUTED ONLY UPON EXERCISE OF WARRANT]
The undersigned registered owner of this Warrant irrevocably exercises this
Warrant for the purchase of such number of shares of Common Stock of THE FINOVA
GROUP INC. representing _____________ percent (___%) of the Diluted Common Stock
(as defined in this Warrant), as of the date hereof, after giving effect to this
exercise, and herewith makes payment therefor, all at the price and on the terms
and conditions specified in this Warrant and requests that certificates for the
shares of Common Stock hereby purchased (and any securities or other property
issuable upon such exercise) be issued in the name of and delivered to
_____________ whose address is _________________ and, if such shares of Common
Stock shall not include all of the shares of Common Stock issuable as provided
in this Warrant, that a new Warrant of like tenor and date for the balance of
the shares of Common Stock issuable hereunder be delivered to the undersigned.
__________________________________
(Name of Registered Owner)
__________________________________
(Signature of Registered Owner)
__________________________________
(Street Address)
__________________________________
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
A-1
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the Assignee named below all of
the rights of the undersigned under this Warrant, with respect to the
[PERCENTAGE OF DILUTED COMMON STOCK] set forth below:
Percentage of Diluted
Name and Address of Assignee Common Stock
---------------------------- ------------
and does hereby irrevocably constitute and appoint _______________________
attorney-in-fact to register such transfer on the books of THE FINOVA GROUP INC.
maintained for the purpose, with full power of substitution in the premises.
Dated:__________________ Print Name:___________________
Signature:____________________
Witness:______________________
NOTICE: The signature on this assignment must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
B-1
