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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
THE FINOVA GROUP INC.
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(Name of Issuer)
COMMON STOCK, $0.01 PAR VALUE
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(Title of class of securities)
317928109
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(CUSIP number)
JOSEPH A. ORLANDO
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
LEUCADIA NATIONAL CORPORATION
315 PARK AVENUE SOUTH
NEW YORK, NEW YORK 10010
WITH A COPY TO:
ANDREA A. BERNSTEIN, ESQ.
WEIL, GOTSHAL & MANGES, LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
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(Name, address and telephone number of person
authorized to receive notices and communications)
AUGUST 21, 2001
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the Schedule, including all exhibits. The information required on the
remainder of this cover page shall not be deemed to be "filed" for the purposes
of Section 18 of the Securities Exchange Act of 1934 (the "Exchange Act") or
otherwise subject to the liabilities of that section of the Exchange Act but
shall be subject to all other provisions of the Exchange Act.
(Continued on following pages)
(Page 1 of 22 pages)
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CUSIP No. 317928109 13D
---------------------------------------------------------------------------------- ---------------------------------
---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: Berkadia LLC
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: BK (see Item 3)
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: OO (Limited Liability Company)
---------------------- ----------------------------------------------------------- ------------------------------------------------
2
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CUSIP No. 317928109 13D
---------------------------------------------------------------------------------- ---------------------------------
---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: Berkadia Management LLC
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: OO (Limited Liability Company)
---------------------- ----------------------------------------------------------- ------------------------------------------------
3
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CUSIP No. 317928109 13D
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---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: WMAC Investors, Inc.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
---------------------- ----------------------------------------------------------- ------------------------------------------------
4
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CUSIP No. 317928109 13D
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---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: WMAC Investment Corporation
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Wisconsin
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
---------------------- ----------------------------------------------------------- ------------------------------------------------
5
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CUSIP No. 317928109 13D
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---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: Phlcorp, Inc.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: Pennsylvania
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
---------------------- ----------------------------------------------------------- ------------------------------------------------
6
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CUSIP No. 317928109 13D
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---------------------- ----------------------------------------------------------- ------------------------------------------------
1 NAME OF REPORTING PERSON: Leucadia National Corporation
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON:
---------------------- ------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [x]
(b) [_]
---------------------- ------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
---------------------- ------------------------------------- ----------------------------------------------------------------------
4 SOURCE OF FUNDS: N/A
---------------------- ------------------------------------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [_]
---------------------- ----------------------------------------------------------- ------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION: New York
----------------------------------- -------- ---------------------------------------------------- ---------------------------------
NUMBER OF 7 SOLE VOTING POWER: -0-
SHARES
-------- ---------------------------------------------------- ---------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 61,020,581 (see Items 5 and 6)
OWNED BY
-------- ---------------------------------------------------- ---------------------------------
EACH 9 SOLE DISPOSITIVE POWER: -0-
REPORTING
-------- ---------------------------------------------------- ---------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 61,020,581 (see Items 5 and 6)
---------------------- -------------------------------------------------------------------------- ---------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 61,020,581 (see Items 5 and 6)
---------------------- ------------------------------------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: [_]
---------------------- ------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 50%
---------------------- ----------------------------------------------------------- ------------------------------------------------
14 TYPE OF REPORTING PERSON: CO
---------------------- ----------------------------------------------------------- ------------------------------------------------
7
Item 1. Security and Issuer.
-------------------
This Statement on Schedule 13D relates to the common stock,
$0.01 par value per share (the "Company Common Stock"), of The FINOVA Group
Inc., a Delaware corporation (the "Company"). The address of the principal
executive office of the Company is 4800 North Scottsdale Road, Scottsdale, AZ
85251.
Item 2. Identity and Background.
-----------------------
This Statement is being filed by Leucadia National
Corporation ("Leucadia"), and its subsidiaries, Phlcorp, Inc. ("Phlcorp"), WMAC
Investment Corporation ("WMAC"), a direct subsidiary of Phlcorp and WMAC
Investors, Inc. ("WMAC II"), a direct subsidiary of WMAC (collectively, the
"Leucadia Parties"), together with Berkadia Management LLC ("Berkadia
Management"), a Delaware limited liability company, the members of which are BH
Finance LLC ("BF"), an indirect subsidiary of Berkshire Hathaway Inc.
("Berkshire"), and WMAC, and Berkadia LLC ("Berkadia"), a Delaware limited
liability company the members of which are WMAC II, Berkadia Management and BHF
Berkadia Member, Inc. ("BHF"), an indirect subsidiary of Berkshire. As discussed
in Items 3, 4, 5 and 6 below, the Leucadia Parties, Berkadia, Berkadia
Management and Berkshire are members of a group with respect to the Company
Common Stock. The Leucadia Parties, Berkadia and Berkadia Management are making
this separate filing on Schedule 13D in accordance with Rule 13d-1(k)(2) under
the Securities Exchange Act of 1934, as amended, and the Leucadia Parties are
solely responsible for the information contained in this separate filing, except
for information with respect to Berkadia and Berkadia Management. Berkadia and
Berkadia Management are Reporting Persons in this Schedule 13D but do not assume
any responsibility for information contained herein with respect to the Leucadia
Parties. Berkshire and its subsidiaries are filing a separate Schedule 13D with
respect to the Company Common Stock (the "Berkshire 13D") that will include
Berkadia and Berkadia Management as reporting persons. The information in this
Schedule 13D and in the Berkshire 13D with respect to Berkadia and Berkadia
Management is duplicative out of necessity and does not reflect the acquisition
of additional shares of Company Common Stock. For purposes of this statement,
Leucadia, Phlcorp, WMAC, WMAC II, Berkadia Management and Berkadia are sometimes
collectively referred to as the "Beneficial Owners."
(a)-(c) Berkadia is a Delaware limited liability company
with its principal office at 1440 Kiewit Plaza, Omaha, Nebraska 68131. Berkadia
was formed to provide a vehicle for Berkshire and Leucadia to make a loan to
Finova Capital Corporation ("FNV Capital") in connection with the restructuring
of its debt and to arrange a bank facility to finance such loan. The manager of
Berkadia is Berkadia Management and the members are WMAC II, BHF and Berkadia
Management.
Berkadia Management is a Delaware limited liability company
with its principal place of business at 140 Kiewit Plaza, Omaha, Nebraska 68131.
Berkadia Management was created solely to act as manager of and to hold its
membership interest in Berkadia. Berkadia Management is managed by its members,
WMAC and BF.
8
WMAC II is a Delaware corporation with its principal office
at 315 Park Avenue South, New York, New York 10010. WMAC II is a company the
sole business of which is owning the membership interest in Berkadia. All of its
outstanding common shares are owned by WMAC.
WMAC is a Wisconsin corporation with its principal office
at 2 Plaza East, 330 E. Kilbourne Ave., Suite 1280, Milwaukee, Wisconsin 53202.
WMAC is a holding company for certain of Leucadia's investments and operations.
All of its outstanding common shares are owned by Phlcorp.
Phlcorp is a Pennsylvania corporation with its principal
office at 2 Plaza East, 330 E. Kilbourne Avenue, Suite 1280, Milwaukee, WI
53202. Phlcorp is a holding company through which Leucadia conducts certain of
its operations. All of its outstanding common shares are owned by Leucadia.
Leucadia is a New York corporation with its principal
office at 315 Park Avenue South, New York, New York 10010. Leucadia is a holding
company principally engaged in a variety of businesses, including banking and
lending, property and casualty insurance, manufacturing, winery operations, real
estate activities and precious metals mining. Approximately 34.9% of the common
shares of Leucadia outstanding at April 11, 2001 (including shares issuable
pursuant to currently exercisable warrants) is beneficially owned (directly and
through family members) by Ian M. Cumming, Chairman of the Board of Directors of
Leucadia, and Joseph S. Steinberg, a director and President of Leucadia
(excluding an additional 2.0% of the common shares of Leucadia beneficially
owned by trusts for the benefit of Mr. Steinberg's children, as to which Mr.
Steinberg disclaims beneficial ownership). Private charitable foundations
independently established by each of Messrs. Cumming and Steinberg each
beneficially own less than one percent of the outstanding common shares of
Leucadia. Mr. Cumming and Mr. Steinberg each disclaim beneficial ownership of
the common shares of Leucadia held by their respective private charitable
foundation. Mr. Cumming and Mr. Steinberg have an oral agreement pursuant to
which they will consult with each other as to the election of a mutually
acceptable Board of Directors of Leucadia.
The following information with respect to each executive
officer and director of the Beneficial Owners and Leucadia is set forth in
Schedule A hereto: (i) name, (ii) business address, (iii) citizenship, (iv)
present principal occupation or employment and (v) name of any corporation or
other organization in which such employment is conducted.
(d)-(f) During the last five years, none of the Beneficial
Owners and, to their knowledge, none of the other persons identified pursuant to
Paragraphs (a) through (c) of this Item 2, has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or was a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which such person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, Federal or State securities laws or finding any
violation with respect to such laws. To the knowledge of the Beneficial Owner,
9
each of the individuals identified pursuant to Paragraphs (a) through (c) of
this Item 2 is a United States citizen.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The 61,020,581 Shares of Company Common Stock (the
"Shares") were issued to Berkadia pursuant to the Third Amended and Restated
Joint Plan of Reorganization of Debtors Under Chapter 11 of the Bankruptcy Code,
as amended and supplemented (the "Plan") filed by the Company and eight of its
subsidiaries (collectively, the "Debtors") with the U.S. Bankruptcy Court. The
U.S. Bankruptcy Court entered a confirmation order with respect to the Plan on
August 10, 2001. Pursuant to the Plan, on August 21, 2001, the effective date of
the Plan (the "Effective Date"), among other things, (i) Berkadia extended a
$5,600,000,000 loan to the Company's subsidiary, FNV Capital, on a senior
secured basis (the "Berkadia Loan"), (ii) the Company and substantially all of
its subsidiaries other than FNV Capital guaranteed FNV Capital's repayment of
the Berkadia Loan, (iii) the Company issued the Shares to Berkadia, and (iv) the
Company commenced the distributions to creditors of and holders of interests in
the Debtors pursuant to the Plan, including the issuance of senior notes (the
"New Senior Notes") by the Company. The Third Amended and Restated Disclosure
Statement with Respect to Joint Plan of Reorganization of Debtors Under Chapter
11 of the Bankruptcy Code (the "Disclosure Statement"), which includes the text
of the Third Amended and Restated Joint Plan of Reorganization dated June 13,
2001 (the "June 13 Plan"), and the Revised Technical Amendments to Third Amended
and Restated Joint Plan of Reorganization (which together with the June 13 Plan
are collectively referred to herein as the "Plan") are filed as Exhibit 2 and
Exhibit 3 hereto, respectively, and are incorporated herein by reference.
Berkadia financed the Berkadia Loan and acquired the Shares
with funds drawn under a $5,600,000,000 principal amount loan facility from a
group of lenders with Fleet Securities, Inc. as administrative agent (the "Fleet
Facility"). The Fleet Facility is secured by a pledge of the $5,600,000,000
secured promissory note from FNV Capital to Berkadia issued pursuant to the
Berkadia Loan. Leucadia has guaranteed repayment of the Fleet Facility on a
primary basis as to 10% of the Fleet Facility (the "Leucadia Guaranty"), and
Berkshire has guaranteed repayment of the Fleet Facility on a primary basis as
to 90% of the Fleet Facility, with a secondary guarantee of Leucadia's 10%
primary guarantee (the "Berkshire Guaranty"). The Fleet Facility is filed as
Exhibit 4 hereto and is incorporated herein by reference. The Leucadia Guaranty
and the Berkshire Guaranty are filed as Exhibit 5 and Exhibit 6 hereto,
respectively, and are incorporated herein by reference.
Item 4. Purpose of the Transaction.
--------------------------
Berkadia's purpose in entering into these transactions was
to obtain the opportunity to profit from refinancing the Company. The following
description of certain portions of the Plan and the documents implementing the
10
Plan is qualified in its entirety by reference to (i) the Disclosure Statement,
(ii) the Plan, (iii) the New Senior Notes Indenture between the Company and The
Bank of New York, as trustee, filed as Exhibit 7 hereto, and (iv) the Credit
Agreement between FNV Capital and Berkadia, filed as Exhibit 8 hereto, all of
which are incorporated herein by reference.
Pursuant to the Plan, on August 21, 2001, Berkadia extended
the Berkadia Loan to FNV Capital which, together with the Debtors' cash on hand
and the issuance by the Company of the New Senior Notes to holders of claims
against or interests in the Debtors, enabled the Debtors to restructure their
debt.
Pursuant to the Plan, the Company's Board of Directors was
reorganized as of the Effective Date, and Berkadia (through Management, its
manager) exercised its right to designate four (4) of the initial directors,
which constitutes a majority of the initial reorganized Board of Directors of
the Company as of the Effective Date. Under the Berkadia Management LLC
Operating Agreement, filed as Exhibit 9 hereto and incorporated herein by
reference, BF nominated two of these four directors and WMAC nominated the other
two. Under the Plan, two members of the initial reorganized Board of Directors
of the Company are directors who were serving on the Company's Board of
Directors prior to the Effective Date and one new director was designated by the
Official Committee of Creditors of the Debtors. Pursuant to the Plan, the bylaws
of the Company were amended on the Effective Date to provide that so long as at
least $500,000,000 in aggregate principal amount of New Senior Notes are
outstanding (excluding New Senior Notes held by affiliates of the Company), the
holders of New Senior Notes unaffiliated with the Company (the "Unaffiliated
Note Holders") shall be allowed to designate the nominee for any replacement or
successor to the director designated by the creditors of the Company pursuant to
the terms of the Plan to serve on the Company's Board of Directors (such
director and any successor referred to herein as the "Note Holder Designee"). As
further described in Item 6, Berkadia, Leucadia, Berkshire and the Company have
entered into a Voting Agreement, which is filed as Exhibit 10 hereto and
incorporated herein by reference, by which Berkadia is obligated to vote for the
election of the Note Holder Designee, as well as for removal of such Note Holder
Designee if directed by the Unaffiliated Note Holders.
Pursuant to the Plan, under a ten year Management Services
Agreement with Leucadia and its subsidiary, Leucadia International Corporation,
a Utah corporation, Leucadia will be responsible for the general management of
the Company, subject to the authority of the Company's Board of Directors, and
has designated its employees to act as Chairman of the Board and President of
the Company. Berkshire shares in the fees received by Leucadia under the
Management Services Agreement.
Under the terms of the Berkadia Loan, the Company will not
be permitted to pay any dividends or repurchase any common stock unless agreed
to by Berkadia and otherwise permitted by the terms of the New Senior Notes. For
so long as any of the New Senior Notes are outstanding, there will not be any
dividends made on, or repurchase of, Company Common Stock other than as
permitted by the terms of the New Senior Notes. The New Senior Notes provide
that: (a) after payment in full of the Berkadia Loan, making payments or funding
11
reserves required prior to making an interest payment on the New Senior Notes
(as described above), paying accrued interest on the New Senior Notes and
optional purchases of New Senior Notes in permitted amounts, ninety-five percent
(95%) of the remaining "available cash" will be used to make semi-annual
prepayments of principal on the New Senior Notes and five percent (5%) will be
used for distributions to and/or repurchases of stock from the Company's
stockholders; and (b) after payment in full of the outstanding principal of the
New Senior Notes, optional purchases of New Senior Notes in permitted amounts,
and payments to holders of Company Common Stock in an aggregate amount equal to
5.263% of the aggregate principal amount of New Senior Notes issued pursuant to
the Plan, ninety-five percent (95%) of any "available cash" will be used to pay
contingent interest to holders of New Senior Notes in an aggregate amount of up
to $100 million (as such amount may be reduced to reflect a decrease in the
principal amount of New Senior Notes outstanding as a result of repurchases (but
not prepayments or repayments) by the Company) and five percent (5%) of such
remaining "available cash" will be used for distributions to and/or repurchase
of stock from Company stockholders. Contingent interest payments will terminate
fifteen (15) years after the Effective Date of the Plan. The reorganized Board
of Directors of the Company will adopt procedures in connection with any non-pro
rata purchase of Company Common Stock neither to prefer nor to discriminate
against Berkshire and Leucadia in any such purchases.
As contemplated by the Plan, on the Effective Date, the
Company issued the Shares to Berkadia, representing 50% of the equity of the
Company outstanding as of the Effective Date after giving effect to the Company
Common Stock issued pursuant to the Plan, resulting in a total of 122,041,162
shares of Company Common Stock being issued and outstanding as of the Effective
Date.
The Plan calls for additional Company Common Stock to be
issued to satisfy final judgments, if any, for plaintiffs in an existing
securities litigation suit against the Company. For all issuances of stock
described herein relating to the securities litigation, holders of allowed
claims will receive stock having a value, as determined by the Bankruptcy Court,
equal to the amount of such claims that was not covered by applicable insurance
policies. In the event that any additional Company Common Stock is issued,
Berkadia shall contemporaneously receive additional Company Common Stock in the
amount that it would have received if such issuances had occurred before the
Effective Date.
Pursuant to the Plan, the Company's post-confirmation
business plan does not contemplate any new business activities related to new
customers. The Plan provides that while other activities may be initiated or
undertaken in the future, the main objective of the Company's post-confirmation
business plan is to maximize the value of its portfolio through the orderly
liquidation of the portfolio over time.
Pursuant to the Plan, the Certificate of Incorporation of
the Company was amended on the Effective Date, among other things, to prohibit
the Company from issuing non-voting equity securities and to impose certain
restrictions on the transfer of the Company's equity securities, applicable to
persons who are or become (under applicable tax rules) five-percent shareholders
12
of the Company, without the prior written approval of the Company's Board of
Directors. By resolution of the Company's Board of Directors, these transfer
restrictions do not apply to any of the Shares owned by Berkadia or its
affiliates.
Additional information is included in the responses to
Items 3 and 6 of this Schedule 13D, which Items are incorporated herein by
reference.
Except as set forth above, the Beneficial Owners have no
present plans or intentions which would result in or relate to any of the
transactions described in subparagraphs (a) through (j) of Item 4 of Schedule
13D.
Item 5. Interest in Securities of the Issuer.
------------------------------------
(a) As of August 21, 2001, the Beneficial Owners
beneficially owned the following shares of Company Common Stock:
(i) Berkadia is the direct owner of 61,020,581
shares of Common Stock representing approximately 50% of the 122,041,162 shares
of Company Common Stock of the Company outstanding after giving effect to
issuances of Company Common Stock pursuant to the Plan (the "Outstanding
Shares").
(ii) By virtue of its membership interests in
Berkadia, (although WMAC II has no power to vote the shares because it has
delegated this power to Berkadia Management) for purposes of this Schedule 13D,
WMAC II may be deemed to share dispositive power with respect to Company Common
Stock owned of record by Berkadia and therefore may be deemed to be a beneficial
owner of the shares of Common Stock beneficially owned by Berkadia.
(iii) By virtue of its membership interests in
Berkadia, for purposes of this Schedule 13D, Berkadia Management may be deemed
to share voting and dispositive powers with respect to Company Common Stock
owned of record by Berkadia and therefore may be deemed to be a beneficial owner
of the shares of Company Common Stock beneficially owned by Berkadia.
(iv) By virtue of its ownership of membership
interests in Berkadia Management and all of the outstanding shares of WMAC II,
for purposes of this Schedule 13D, WMAC may be deemed to share voting and
dispositive powers with respect to Company Common Stock owned of record by
Berkadia and therefore may be deemed to be a beneficial owner of the shares of
Company Common Stock beneficially owned by Berkadia Management and WMAC II.
(v) By virtue of its ownership of all of the
outstanding shares of WMAC, for the purposes of this Schedule 13D, Phlcorp may
be deemed to share voting and dispositive powers with respect to Company Common
Stock owned of record by Berkadia, and therefore may be deemed to be a
beneficial owner of all of the shares of Company Common Stock beneficially owned
by WMAC.
13
(vi) By virtue of its ownership of all of the
outstanding shares of Phlcorp, for purposes of this Schedule 13D, Leucadia may
be deemed to share voting and dispositive power with respect to Company Common
Stock owned of record by Berkadia, and therefore may be deemed to be a
beneficial owner of all of the shares of Company Common Stock beneficially owned
by Phlcorp.
(vii) By virtue of their ownership of Leucadia
common shares and their positions with Leucadia, for purposes of this Schedule
13D, Mr. Cumming and Mr. Steinberg may be deemed to share voting and disposition
powers with respect to Company Common Stock beneficially owned by Berkadia and
therefore may be deemed to be beneficial owners of all of the shares of Company
Common Stock beneficially owned by Leucadia.
(viii) Except as set forth in Paragraph (i) through
(vi) of this Item 5(a), to the best knowledge of the Beneficial Owners, none of
the other persons identified pursuant to Item 2 above beneficially owns any
shares of Company Common Stock.
(b) Item 5(a) is incorporated herein by reference. Subject
to the provisions of the operating agreements of Berkadia and Berkadia
Management, the Beneficial Owners may be deemed to share voting and dispositive
powers with respect to the shares of Company Common Stock beneficially owned by
with Berkshire and the other reporting persons reflected in the Berkshire 13D.
(c) Except as otherwise described herein, none of the
persons identified pursuant to Item 2 above has effected any transactions in
Company Common Stock during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
--------------------------------------------------------
Berkadia has entered into a Registration Rights Agreement
with the Company by which the Company has granted Berkadia certain rights to
obligate the Company to register for sale under the Securities Act of 1933, as
amended, the shares of Company Common Stock issued to Berkadia or its affiliates
in connection with the Plan (including the Shares). The Registration Rights
Agreement is filed as Exhibit 10 hereto, and is incorporated herein by
reference.
Leucadia, Berkshire, Berkadia and the Company have entered
into a Voting Agreement by which, among other things, Leucadia and Berkshire
agree to cause Berkadia to vote for the election of the Note Holder Designee.
Also under the Voting Agreement, Leucadia and Berkshire agree to cause Berkadia
to vote to remove the Note Holder Designee if the Unaffiliated Note Holders so
direct. The obligations of Leucadia and Berkshire under the Voting Agreement are
14
subject to certain termination provisions. The Voting Agreement is filed as
Exhibit 11 hereto, and is incorporated herein by reference.
The First Amended and Restated Berkadia LLC Operating
Agreement (the "Berkadia Agreement") provides that except in the event of a
liquidation of the Company or as otherwise unanimously agreed by Berkadia's
members, Company Common Stock shall be transferred and delivered to, held
directly by, and not distributed by, Berkadia. Under the Berkadia Agreement,
Berkadia further agrees to vote its Company Common Stock in such manner as
determined by Management, its manager, and any directors that Berkadia is
entitled to, or has the power to, elect or otherwise nominate or designate to
the Company's Board of Directors, shall be elected, nominated or designated by
Management pursuant to the terms of the Berkadia Management LLC Operating
Agreement described below. The Berkadia Agreement further provides that Member
is entitled to 20% of proceeds from the Company Common Stock, WMAC Investors,
Inc. is entitled to 20% and Management is entitled to 60% (each being that
member's "Member Stock Percentage"). Upon a liquidation of Berkadia, Company
Common Stock shall be distributed to the members in-kind in accordance with the
Member Stock Percentages. Under the Berkadia Agreement, unless waived by the
members, a liquidation will occur if (among other things) the Berkadia Loan and
the Fleet Facility are paid in full. The Berkadia Agreement also provides that
if a member or its affiliate desires to acquire additional securities or
interests in bank loans of the Company or its affiliates, then the member or its
affiliate may not proceed with such transaction unless the other member is
afforded a reasonable opportunity to acquire one-half of such securities or
interests in bank loans on the same terms (excluding New Senior Notes acquired
through BF's tender offer). The Berkadia Agreement is filed as Exhibit 12 hereto
and is incorporated herein by reference.
Under the Berkadia Management LLC Operating Agreement (the
"Operating Management Agreement"), filed as Exhibit 9 hereto and incorporated
herein by reference, if Berkadia is entitled to, or has power to, elect or
otherwise nominate or designate directors to the Company's Board of Directors,
then Management shall elect, nominate or designate such directors. If the number
of directors to be chosen by Berkadia is an even number, then each of
Management's two members shall choose one-half of such persons. If the number is
an odd number, the members shall unanimously agree on one director and one-half
of the remaining directors shall be selected by each of Management's two
members. The Operating Management Agreement also provides that except in the
event of a liquidation of Berkadia, or as otherwise unanimously agreed by
Management's members, the shares of Company Common Stock shall be transferred
and delivered to, held directly by, and not distributed by, Berkadia. The
Operating Management Agreement further provides that Finance is entitled to 50%
of proceeds from the Company Common Stock, and WMAC is entitled to 50% (each
being that member's "Stock Percentage"). Under the Operating Management
Agreement, Management also agrees to vote the shares of Company Common Stock as
required by the Voting Agreement and otherwise as is unanimously agreed by
Management's members; provided that if the members cannot agree, then Management
shall cause Berkadia to vote the shares of Company Common Stock in the manner
15
directed by each member with respect to that number of Berkadia's shares of
Company Common Stock as is in proportion to such Member's Stock Percentage. The
Operating Management Agreement also provides that if a member or its affiliate
desires to acquire additional securities or interests in bank loans of the
Company or its affiliates, then the member or its affiliate may not proceed with
such transaction unless the other member is afforded a reasonable opportunity to
acquire one-half of such securities or interests in bank loans on the same terms
(excluding New Senior Notes acquired by BF through the Tender Offer).
Other than as set forth above or otherwise described in
this Schedule 13D, there are no contracts, arrangements, understandings or
relationships with respect to any securities of the Company (i) among the
Beneficial Owners and, to the best of their knowledge, any of the other persons
identified pursuant to Item 2 above and (ii) between (a) the Beneficial Owners
and, to the best of their knowledge, any of the other persons identified
pursuant to Item 2 above and (b) any other person, other than the agreements
filed herewith as Exhibits 1-12.
Item 7. Material to be Filed as Exhibits.
--------------------------------
1. Agreement among the Beneficial Owners with respect to
the filing of this Schedule 13D.
2. The Third Amended and Restated Disclosure Statement with
Respect to Joint Plan of Reorganization of Debtors Under Chapter 11 of the
Bankruptcy Code, incorporated herein by reference to Exhibit 10.A to the
Company's Current Report on Form 8-K filed with the Securities and Exchange
Commission (the "SEC") on June 22, 2001.
3. Revised Technical Amendments to Third Amended and
Restated Joint Plan of Reorganization, dated August 10, 2001, incorporated
herein by reference to Exhibit 2.B to the Company's Current Report on Form 8-K
filed with the SEC on August 27, 2001.
4. Loan Agreement, dated as of August 21, 2001, by and
among Berkadia, Fleet Securities, Inc. as administrative agent and various
lenders named therein, incorporated herein by reference to Exhibit 3 to the
Schedule 13D filed with the SEC on August 28, 2001 in respect of Company Common
Stock by Berkshire Hathaway Inc. et al. (the "Berkshire Schedule 13D")
5. Leucadia National Corporation Guaranty to Fleet
Securities, Inc., as administrative agent, and the lenders from time to time
party to the Fleet Facility, dated as of August 21, 2001, incorporated herein by
reference to Exhibit 4 to the Berkshire Schedule 13D.
6. Berkshire Hathaway Inc. Guaranty to Fleet Securities,
Inc., as administrative agent, and the lenders from time to time party to the
Fleet Facility, dated as of August 21, 2001, incorporated herein by reference to
Exhibit 5 to the Berkshire Schedule 13D.
16
7. Indenture, dated as of August 22, 2001, between the
Company and The Bank of New York, as trustee, with respect to the Company's 7.5%
Senior Secured Notes Maturing 2009 With Contingent Interest Due 2016, including
the form of Senior Secured Note, incorporated herein by reference to Exhibit
10.B to the Company's Current Report on Form 8-K filed with the SEC on August
27, 2001.
8. Credit Agreement, dated as of August 21, 2001, by and
between FNV Capital and Berkadia, incorporated herein by reference to Exhibit
10.A to the Company's Current Report on Form 8-K filed with the SEC on August
27, 2001.
9. Berkadia Management LLC Operating Agreement, dated
August 21, 2001, by and between Finance and WMAC, incorporated herein by
reference to Exhibit 8 to the Berkshire Schedule 13D.
10. Registration Rights Agreement, dated August 21, 2001,
by and between Berkadia and the Company, incorporated herein by reference to
Exhibit 10.I to the Company's Current Report on Form 8-K filed with the SEC on
August 27, 2001.
11. Voting Agreement, dated August 21, 2001, by and among
Berkadia, Berkshire, Leucadia and the Company, incorporated herein by reference
to Exhibit 10.J to the Company's Current Report on Form 8-K filed with the SEC
on August 27, 2001.
12. First Amended and Restated Berkadia LLC Operating
Agreement, dated August 21, 2001, by and among Member, WMAC and Management,
incorporated herein by reference to Exhibit 11 to the Berkshire Schedule 13D.
17
SIGNATURE
After reasonable inquiry and to the best of my knowledge
and belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: August 30, 2001
BERKADIA LLC
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
BERKADIA MANAGEMENT LLC
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
WMAC INVESTORS, INC.
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
WMAC INVESTMENT CORPORATION
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
PHLCORP, INC.
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
LEUCADIA NATIONAL CORPORATION
BY: /s/ Joseph A. Orlando
-------------------------------------
Title: Vice President
18
SCHEDULE A
Directors and Executive Officers of WMAC II, WMAC, Phlcorp, Leucadia, Berkadia
Management and Berkadia
------------------------------------------------------------------------------
Set forth below are the name, business address, present principal occupation or
employment of each director and executive officer of WMAC II, WMAC, Phlcorp,
Leucadia, Berkadia Management and Berkadia. To the knowledge of the Beneficial
Owner, each person listed below is a United States citizen.
For purposes of this Schedule A, WMAC II is "(a)", WMAC is
"(b)", Phlcorp is "(c)", Leucadia is "(d)", Berkadia Management is "(e)" and
Berkadia is "(f)".
Director- Principal Occupation or
Name and Business Address ships Offices Employment
------------------------- --------- ------- -----------------------
Ian M. Cumming (a), (b) and (d) Chairman of the Board of (d) Chairman of the Board of (d)
c/o Leucadia National Corporation
529 E. South Temple
Salt Lake City, Utah 84102
Joseph S. Steinberg (a),(b) and (d) President of (d) President of (d)
c/o Leucadia National Corporation
315 Avenue South
New York, NY 10010
Paul M. Dougan (d) -- President and Chief Executive
c/o Equity Oil Company Officer of Equity Oil Company (a
10 West 300 South company engaged in oil and gas
Salt Lake City, Utah 84102 exploration and production having
an office in Salt Lake City, Utah)
Lawrence D. Glaubinger (d) -- Chairman of the Board of Stern &
c/o Stern & Stern Stern Industries, Inc. (a company
Industries, Inc. engaged in the manufacture and
708 Third Avenue sale of textiles); President of
New York, N.Y. Lawrence Economic Consulting Inc.,
(a management consulting firm)
James E. Jordan (d) -- Private investor
c/o The Jordan Company
767 Fifth Avenue
New York, N.Y. 10153
A-1
Director- Principal Occupation or
Name and Business Address ships Offices Employment
------------------------- --------- ------- -----------------------
Jesse Clyde Nichols, III (d) -- Retired Investor
c/o Crimsco, Inc.
5001 E. 59th St.
Kansas City, Mo. 64130
Thomas E. Mara (c) Executive Vice President and Executive Vice President and
c/o Leucadia National Corporation Treasurer of (d); Executive Treasurer of (d)
315 Avenue South Vice President of (a);
New York, NY 10010 President of (c); Vice
President of (e) and (f)
Joseph A. Orlando (a),(b),(c) Vice President and Chief Vice President and Chief Financial
c/o Leucadia National Corporation Financial Officer of (d); Officer of (d)
315 Avenue South Vice President of (a), (b),
New York, NY 10010 (c), (e) and (f); Treasurer
of (c)
Lawrence S. Hershfield -- Vice President of (e) and (f) President of Leucadia
c/o Leucadia National Corporation International Corporation, a
315 Avenue South subsidiary of (d).
New York, NY 10010
Mark Hornstein (c) Vice President of (a), (b), Vice President of (d)
c/o Leucadia National Corporation (c) and (d)
315 Avenue South
New York, NY 10010
Philip M. Cannella (a),(b) Vice President and Treasurer Vice President of (d)
c/o Leucadia National Corporation of (a) and (b); Vice
315 Avenue South President of (c) and (d)
New York, NY 10010
Barbara L. Lowenthal -- Vice President of (a) and Vice President and Comptroller of
c/o Leucadia National Corporation (b); Vice President and (d)
315 Avenue South Comptroller of (d)
New York, NY 10010
H. E. Scruggs -- Vice President of (d) Vice President of (d)
c/o Leucadia National Corporation
315 Avenue South
New York, NY 10010
A-2
Director- Principal Occupation or
Name and Business Address ships Offices Employment
------------------------- --------- ------- -----------------------
Joseph Sartin -- Vice President and Assistant Accountant of (d)
c/o Leucadia National Corporation Secretary of (c)
315 Avenue South
New York, NY 10010
Jane Goldman -- Vice President of (c) Assistant Comptroller of (d)
c/o Leucadia National Corporation
315 Avenue South
New York, NY 10010
Laura E. Ulbrandt -- Secretary of (a), (b), (c) Secretary of (d)
c/o Leucadia National Corporation and (d)
315 Avenue South
New York, NY 10010
Marc D. Hamburg -- Vice President and Treasurer Vice President and Treasurer of
c/o Berkshire Hathaway, Inc. of Berkshire Hathaway Inc.; Berkshire Hathaway Inc.
1440 Kiewit Plaza President and Chief
Omaha, Nebraska 68131 Financial Officer of (e) and
(f)
Mark D. Millard -- Vice President of (e) and (f) Director of Financial Assets of
c/o Berkshire Hathaway, Inc. Berkshire.
1440 Kiewit Plaza
Omaha, Nebraska 68131
Daniel J. Jaksich -- Vice President of (e) and (f) Controller of Berkshire
c/o Berkshire Hathaway, Inc.
1440 Kiewit Plaza
Omaha, Nebraska 68131
A-3
AGREEMENT
This will confirm the agreement by and among all the
undersigned that the Schedule 13 D filed on or about this date with respect to
the beneficial ownership of the undersigned of shares of the common stock of The
FINOVA Group Inc. is being filed on behalf of each of the entities named below.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
Dated: August 30, 2001
BERKADIA LLC
BERKADIA MANAGEMENT LLC
WMAC INVESTORS, INC.
WMAC INVESTMENT CORPORATION
PHLCORP, INC.
LEUCADIA NATIONAL CORPORATION
/s/ Joseph A. Orlando
-------------------------------------------------
BY: Joseph A. Orlando
Title: Vice President of each of Berkadia, LLC,
Berkadia Management LLC,
WMAC Investment Corporation,
WMAC Investors, Inc., Phlcorp, Inc.,
Leucadia National Corporation
A-4