Exhibit 99.5
Exhibit C to
Securities Purchase Agreement
REGISTRATION RIGHTS AGREEMENT
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Registration Rights Agreement, dated as of ____________,
2001, by and among The FINOVA Group Inc., a Delaware corporation ("Company") and
Leucadia National Corporation, a New York Corporation ("Purchaser").
W I T N E S S E T H :
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WHEREAS, Company and Purchaser have entered into that
certain Securities Purchase Agreement, dated as of December 20, 2000 (the
"Purchase Agreement"), pursuant to which Company has agreed to issue and sell to
Purchaser, and Purchaser has agreed to purchase from Company, shares of Series B
Convertible Preferred Stock, $0.01 par value per share ("Series B Preferred
Stock"); and
WHEREAS, pursuant to the Purchase Agreement, Purchaser has
agreed to act as a standby purchaser from Company of up to four hundred thousand
shares of Company's Series C Convertible Preferred Stock, $0.01 par value per
share (the shares of such preferred stock so acquired by Purchaser being
referred to herein as the "Series C Preferred Stock" and together with the
Series B Preferred Stock, the "Convertible Preferred Stock").
WHEREAS, in order to induce Purchaser to enter into the
Purchase Agreement and to purchase or agree to purchase the shares of
Convertible Preferred Stock, Company has agreed to provide registration rights
with respect thereto;
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms
defined in the Purchase Agreement are used herein as therein defined, and the
following shall have (unless otherwise provided elsewhere in this Agreement) the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing, and shall refer to the Agreement as the same
may be in effect at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed in the
State of New York.
"Commission" shall mean the Securities and Exchange
Commission or any other federal agency then administering the Securities Act and
other federal securities laws.
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"Conversion Shares" shall mean shares of Common Stock
issued upon conversion of shares of Convertible Preferred Stock.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Holder" shall mean the holder of Conversion Shares or
shares of Convertible Preferred Stock.
"Majority Holders" shall mean Holders holding at the time,
shares of Convertible Preferred Stock or Conversion Shares representing more
than 50% of the sum of (x) all then outstanding Conversion Shares and (y) all
shares of Common Stock issuable to the holders of then-outstanding Convertible
Preferred Stock upon the conversion thereof.
"NASD" shall mean the National Association of Securities
Dealers, Inc., or any successor corporation thereto.
"Registrable Securities" shall mean the shares of
Convertible Preferred Stock owned by Purchaser or its permitted transferees, all
Conversion Shares or shares of Convertible Preferred Stock or Common Stock
hereafter acquired by Purchaser or which Purchaser hereafter obtains the right
to acquire pursuant to the terms of the Purchase Agreement or otherwise. As to
any particular Registrable Securities held by any Holder other than Purchaser,
such securities shall cease to constitute Registrable Securities when (A) a
registration statement with respect to the sale of such securities shall have
been declared effective under the Securities Act and such securities shall have
been disposed of in accordance with the plan of distribution contemplated by the
registration statement, (B) such securities shall have been sold in satisfaction
of all applicable conditions to the resale provisions of Rule 144 under the
Securities Act (or any successor provision thereto), (C) all Registrable
Securities held by such Holder may be sold pursuant to Rule 144(k) of the
Securities Act, or (D) such securities shall have ceased to be issued and
outstanding.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
2. Required Registration. After receipt of a written
request from the holders of Registrable Securities requesting that Company
effect a registration under the Securities Act covering at least 20% of the
Registrable Securities initially outstanding or having a minimum anticipated
aggregate offering price of $25,000,000, and specifying the intended method or
methods of disposition thereof, Company shall promptly notify all Holders in
writing of the receipt of such request and each such Holder, in lieu of
exercising its rights under Section 3 may elect (by written notice sent to
Company within 10 Business Days from the date of such Holder's receipt of the
aforementioned Company's notice) to have Registrable Securities included in such
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registration thereof pursuant to this Section 2. Thereupon Company shall, as
expeditiously as is possible, use its commercially reasonable efforts to effect
the registration under the Securities Act of all shares of Registrable
Securities which Company has been so requested to register by such Holders for
sale, all to the extent required to permit the disposition (in accordance with
the intended method or methods thereof, as aforesaid) of the Registrable
Securities so registered; provided, however, that Company shall not be required
to effect more than three (3) registrations of any Registrable Securities
pursuant to this Section 2.
3. Incidental Registration. If Company at any time proposes
to file on its behalf and/or on behalf of any of its security holders (the
"demanding security holders") a Registration Statement under the Securities Act
on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of Company
pursuant to any employee benefit plan, respectively) for the general
registration of securities, it will give written notice to all Holders at least
15 days before the initial filing with the Commission of such Registration
Statement, which notice shall set forth the intended method of disposition of
the securities proposed to be registered by Company. The notice shall offer to
include in such filing the aggregate number of shares of Registrable Securities
as such Holders may request.
Each Holder desiring to have Registrable Securities
registered under this Section 3 shall advise Company in writing within 10 days
after the date of receipt of such offer from Company, setting forth the amount
of such Registrable Securities for which registration is requested. Company
shall thereupon include in such filing the number of shares of Registrable
Securities for which registration is so requested, subject to the next sentence,
provided that Company may in its sole discretion determine to abandon any such
registration. If the managing underwriter of a proposed public offering shall
advise Company in writing that, in its opinion, the distribution of the
Registrable Securities requested to be included in the registration concurrently
with the securities being registered by Company or such demanding security
holder would materially and adversely affect the distribution of such securities
by Company or such demanding security holder, then all selling security holders
(including the demanding security holder who initially requested such
registration) shall reduce the amount of securities each intended to distribute
through such offering on a pro rata basis. Except as otherwise provided in
Section 5, all expenses of such registration shall be borne by Company.
4. Registration Procedures. If Company is required by the
provisions of Section 2 or 3 to use its commercially reasonable efforts to
effect the registration of any of its securities under the Securities Act,
Company will, as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such securities and use its commercially reasonable
efforts to cause such Registration Statement to become and remain effective for
a period of time required for the disposition of such securities by the holders
thereof, but not to exceed 180 days;
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(b) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities covered by such Registration
Statement until the earlier of such time as all of such securities have been
disposed of in a public offering or the expiration of 180 days;
(c) furnish to such selling security holders such number of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents, as such selling security holders may reasonably request;
(d) use its commercially reasonable efforts to register or
qualify the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions within the United States and
Puerto Rico as each holder of such securities shall request (provided, however,
that Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified or
to file any general consent to service or process), and do such other reasonable
acts and things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such Registration
Statement;
(e) furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to Section 2, on the date that
such shares of Registrable Securities are delivered to the underwriters for sale
pursuant to such registration or, if such Registrable Securities are not being
sold through underwriters, on the date that the Registration Statement with
respect to such shares of Registrable Securities becomes effective, (1) an
opinion, dated such date, of the independent counsel representing Company for
the purposes of such registration, addressed to the underwriters, if any, and if
such Registrable Securities are not being sold through underwriters, then to the
Holders making such request, in customary form and covering matters of the type
customarily covered in such legal opinions; and (2) a comfort letter dated such
date, from the independent certified public accountants of Company, addressed to
the underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the Holder making such request and, if such
accountants refuse to deliver such letter to such Holder, then to Company, in a
customary form and covering matters of the type customarily covered by such
comfort letters and as the underwriters or such Holder shall reasonably request;
(f) enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(g) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, but not
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later than 18 months after the effective date of the Registration Statement, an
earnings statement covering the period of at least 12 months beginning with the
first full month after the effective date of such Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
It shall be a condition precedent to the obligation of
Company to take any action pursuant to this Agreement in respect of the
securities which are to be registered at the request of any Holder that such
Holder shall (i) furnish to Company such information regarding the securities
held by such Holder and the intended method of disposition thereof as Company
shall reasonably request and as shall be required in connection with the action
taken by Company and (ii) in connection with an underwritten offering, enter
into customary agreements (including an underwriting agreement and a custody
agreement, each in customary form, and a lock-up agreement with respect to such
holder's equity securities of Company as may be requested by the managing
underwriter).
5. Expenses. All expenses incurred in complying with this
Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), printing expenses,
fees and disbursements of counsel for Company, the reasonable fees and expenses
of counsel for the selling security holders (selected by those holding a
majority of the securities being registered), expenses of any special audits
incident to or required by any such registration and expenses of complying with
the securities or blue sky laws of any jurisdiction pursuant to Section 4(d),
shall be paid by Company, except that:
(a) all such expenses in connection with any amendment or
supplement to the Registration Statement or prospectus filed more than 180 days
after the effective date of such Registration Statement because any Holder has
not effected the disposition of the securities requested to be registered shall
be paid by such Holder; and
(b) Company shall not be liable for any fees, discounts or
commissions to any underwriter or any fees or disbursements of counsel for any
underwriter in respect of the securities sold by such Holder.
6. Indemnification and Contribution.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, Company shall
indemnify and hold harmless the holder of such Registrable Securities, such
holder's directors and officers, and each other person (including each
underwriter) who participated in the offering of such Registrable Securities and
each other person, if any, who controls such holder or such participating person
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such holder or any such director or
officer or participating person or controlling person may become subject under
the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
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of or are based upon (i) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or (ii) any alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse such holder or such director, officer or participating
person or controlling person for any legal or any other expenses reasonably
incurred by such holder or such director, officer or participating person or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any actual or alleged untrue statement
or actual or alleged omission made in such Registration Statement, preliminary
prospectus, prospectus or amendment or supplement in reliance upon and in
conformity with written information furnished to Company by such holder
specifically for use therein or (in the case of any registration pursuant to
Section 2) so furnished for such purposes by any underwriter. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such holder or such director, officer or participating person or
controlling person, and shall survive the transfer of such securities by such
holder.
(b) Each Holder, by acceptance hereof, agrees to indemnify
and hold harmless Company, its directors and officers and each other person, if
any, who controls Company within the meaning of the Securities Act against any
losses, claims, damages or liabilities, joint or several, to which Company or
any such director or officer or any such person may become subject under the
Securities Act or any other statute or at common law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon information in writing provided to Company by such Holder
specifically for use in the following documents and contained, on the effective
date thereof, in any Registration Statement under which securities were
registered under the Securities Act at the request of such holder, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto but in an amount not to exceed the net proceeds received
by such Holder in the offering.
(c) If the indemnification provided for in this Section 6
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
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of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. The liability of any holder of Registrable
Securities hereunder shall not exceed the net proceeds received by it in the
offering.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
7. Listing on Securities Exchange. Company will, at its
expense, list on the NYSE (or such other principal exchange on which it lists
its Common Stock), maintain and, when necessary, increase such listing of, all
shares of Common Stock issued or, to the extent permissible under the applicable
securities exchange rules, issuable upon the exercise of this Agreement so long
as any shares of Common Stock shall be so listed.
8. Certain Limitations on Registration Rights.
Notwithstanding the other provisions of this Agreement:
(a) Company shall not be obligated to register the
Registrable Securities of any Holder if, in the opinion of counsel to Company
reasonably satisfactory to the Holder and its counsel (or, if the Holder has
engaged an investment banking firm, to such investment banking firm and its
counsel), the sale or other disposition of all of such Holder's Registrable
Securities, in the manner proposed by such Holder (or by such investment banking
firm), may be effected without registering such Registrable Securities under the
Securities Act in reliance upon Rule 144(k) under the Securities Act; and
(b) Company shall not be obligated to register the
Registrable Securities of any Holder pursuant to Section 2 if Company has had a
registration statement, under which such Holder had a right to have its
Registrable Securities included pursuant to Section 2 or 3, declared effective
within one year prior to the date of the request pursuant to Section 2.
(c) Company shall have the right to delay the filing or
effectiveness of a registration statement required pursuant to Section 2 hereof
during one or more periods aggregating not more than 180 days in any
twelve-month period in the event that (i) Company would, in accordance with the
advice of its counsel, be required to disclose in the prospectus information not
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otherwise then required by law to be publicly disclosed and (ii) in the judgment
of Company's Board of Directors, there is a reasonable likelihood that such
disclosure, or any other action to be taken in connection with the prospectus,
would materially and adversely affect any existing or prospective material
business situation, transaction or negotiation or otherwise materially and
adversely affect Company.
9. Selection of Managing Underwriters. The managing
underwriter or underwriters for any offering of Registrable Securities to be
registered pursuant to Section 2 shall be selected by Purchaser and shall be
reasonably acceptable to Company.
10. Miscellaneous.
(a) No Inconsistent Agreements. Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement.
(b) Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate. In any action or proceeding brought to enforce
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
(c) Amendments. This Agreement and all other Agreements may
be amended or modified with the written consent of Company and the Majority
Holders.
(d) Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged or sent
by registered or certified mail, return receipt requested, postage prepaid, or
by telecopy and confirmed by telecopy answerback, addressed as follows:
(i) If to any Holder, at its last known address appearing
on the books of Company maintained for such purpose.
(ii) If to Company, at
The FINOVA Group Inc.
4800 North Scottsdale Road
Scottsdale, Arizona 85251-7623
Attention: William Hallinan, Senior Vice-President,
General Counsel and Secretary
Facsimile No.: (480) 636-4949
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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 Business Days after the same shall have been deposited in
the United States mail.
(e) Rule 144. So long as Company is subject to the
reporting requirements under the Exchange Act, it shall comply with such
requirements so as to permit sales of Registrable Securities by the Holders
thereof pursuant to Rule 144 under the Securities Act.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto including any person to whom Registrable Securities are
transferred.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law; Jurisdiction. This Agreement shall be
governed by, construed and enforced in accordance with the laws of the State of
New York without giving effect to the conflict of laws principles thereof.
(i) Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, represents the complete agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
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This Agreement supersedes all prior agreements and understandings between the
parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
THE FINOVA GROUP INC.
By:
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Name:
Title:
LEUCADIA NATIONAL CORPORATION
By:
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Name:
Title:
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