MFI/Leasecomm and xxxxxxxx.xxx
Agreement in Principle
This agreement in principal (the "Agreement") is by and between
MicroFinancial ("MFI") and any of its involved subsidiaries or affiliates
(e.g., Leasecomm) and xxxxxxxx.xxx ("THAT") and any of its involved
subsidiaries or affiliates (e.g., Elective Investments). It is intended by
all parties to this Agreement that it be global in nature and redefine all
of the rights and obligations that each of the involved parties have to one
another. This Agreement is an Agreement in Principle that is subject to the
final drafting and documentation of a Definitive Agreement. All
transactions contemplated herein will be effective as of December 31, 1999,
unless an earlier date is specified in the Definitive Agreement, even
though the Definitive Agreement may be executed at a date after December 3
1, 1999.
All dollar values specified herein are stipulated values that both parties
have agreed to, and are not subject to further adjustment or change unless
otherwise noted. Further, this document may be signed in counterparts with
full effect as if both parties signed a single original.
Upon Xxxxxx Xxxxxx, Xxxxx Xxxxx and/or other such THAT Board members as may
do so agreeing to put additional capital into THAT (including, for purposes
of this Agreement, capital put into THAT since December 1, 1999), MFI and
THAT agree that the following will occur simultaneously:
I .MFI takes over all billing and collection responsibility for loans
pledged against the Credit Line, and releases THAT from all further
obligations relating to these loans and the Credit Line, including
further payments of principal or interest.
2.MFI and THAT agree that the collateral shortfall on the Credit Line is
$1,873,297 (the "Shortfall").
3 .The Shortfall will be converted to Convertible Subordinated Debt ("CSD")
of $1,873,297 with the following characteristics:
Term: 5 years from effective date of documents
Interest Rate: 5% annual rate
Interest Payments: Made monthly, in arrears, no later than the 10th
calendar
day of the month immediately following.
Principal Repayment: Balloon payment upon maturity, if no converted or
repaid
previously.
Conversion Rights: At MFI's sole option, MFI can convert any amount or all
of
the CSD to common equity of THAT at the rate of $ 1. 00
per share("Conversion Price") during the Term of the
loan.
Prepayment Rights: THAT may prepay the CSD at any time with no penalties.
In
order to exercise this Prepayment Right, THAT must give
MFI advance notice of intent to prepay of at least 20
business days, during which time MFI can, at its sole
choosing, exercise any or all of its Conversion Rights.
Registration Rights: See below for separate discussion.
Anti-Dilution Rights: See below for separate discussion.
MFI/THAT Agreement in Principal Page 1 of 4
4. THAT has an outstanding note payable ("Demand Note") to MFI, in which the
principal amount owed, plus accrued interest unpaid totals $12,805.
Xxxxxx X. Xxxxxx, President of THAT, ("Xxxxxx") agrees to buy this
note for $12,805 from MFI paid in good funds at closing. This purchase
in no way relieves Xxxxxx of any or all personal guarantees he may have
made to MFI from time to time.
5. All remaining obligations and debts from THAT to MFI ("Other Debts") are
agreed to be as follows:
Past due interest on Credit Line $255,000
2% Recourse Provision on purchased loans $210,923
Recourse Provision on full-recourse purchased loans $37,800
--------
Total Other Debts $503,723
6. The Other Debts are converted to common equity at the same rate as the
Conversion Price for the Convertible Subordinated Debt, or $1.00 per
share. These shares carry the registration rights and anti-dilution
protection as discussed below.
7. MFI is granted full piggyback registration rights it may exercise on the
shares issued in lieu of satisfaction of the Other Debts and on the
shares underlying the Convertible Subordinated Debt in the event,
without regard to when, THAT executes a substantial, underwritten
secondary offering. In this case, substantial shall mean one resulting in
net proceeds to THAT of $10 million or more ("Offering").
Further, MFI is granted priority and first position as a selling
shareholder, should such Offering occur, to the extent it owns either
shares or CSD at such time. Such priority rights are subject to the
Underwriter's agreement and ability to include such shares in the Offering.
Further, MFI's priority rights under this paragraph are limited to
receiving $2,377,020 (the total of the Shortfall and Other Debts, as
herein defined) in net proceeds from such Offering.
To the extent that the Underwriter is able and to the extent that MFI
wishes to participate further as a selling shareholder in any such
Offering, MFI is granted a priority over shares owned directly,
indirectly, beneficially or deemed to be controlled by Xxxxxx X. Xxxxxx,
Xxxxxxx Xxxxxxxx, and/or Xxxxxxx Xxxx Xxxxxxxx.
8. The shares to be issued for the Other Debts, as well as the shares
underlying the Convertible Subordinated Debt, are restricted from
resale for a period of two (2) years from the date of this Agreement.
After this period of two years has elapsed, MFI has full demand
registration rights on both sets of shares in the amount to be
determined solely by MFI, with such demands to be limited to once per
year during the remaining term of the CSD.
By point of clarification, the rights described in paragraph #7 above
take priority over the restrictions described in this paragraph #8 to
the extent that an Offering occurs prior to two years from the date of
this Agreement.
9. MfI is to be protected from dilution by stock splits or stock dividends.
MFI is granted additional dilution protection as follows:
MFI/THAT Agreement in Principal Page 2 of 4
x.Xx the event THAT is sold to another entity or sells substantially
all of its assets at a price per share, actual or implied, lower
than the Conversion Price, as defined in Paragraph #3 above, then
the Conversion Price on both the CSD and the Other Debts shall be
retroactively adjusted downward to equal the actual or implied price
attending any such sale.
x.Xx the extent THAT sells common or preferred stock, or any form of
debt carrying a conversion to common stock feature to an Insider
after March 31, 2000 wherein the price per share, actual or
implied, is less than the Conversion Price, as defined in Paragraph 93
above, then the Conversion Price shall be adjusted to equal this new,
lower figure. For purposes of this Agreement, "Insider" shall be
defined to mean Xxxxxx X. Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxx Xxxxxxxx,
Xxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxx. X. Xxxxx, any of their families and/or
any entity in which they have a direct, indirect or beneficial interest.
10. All payments, interest and principal, received from Pilot Financial
regarding the purchase and sale agreement dated _______, that THAT has
received or may receive in the future shall be immediately paid t) MFI. As of
the date of this Agreement, it is agreed that such payments to date total
$2,540.28, with such sum to be paid by THAT to MFI upon closing.
11. The purchase and sale agreement between THAT and Pilot Financial is
assigned to MFI.
12. Xxxxxx and Xxxxxxx Xxxx and/or Xxxxxxx Xxxxxxxx (the "Trapassos") have
lent monies to THAT from time to time in the past. The principal and
accrued interest outstanding owed to Xxxxxx as of December 31, 1999 is
approximately $225,000, exclusive of the Demand Note purchased from
MFI, and the principal and accrued interest outstanding owed to the
Trapassos, individually or collectively, as of the same date is
approximately $25,000.
Prior to closing on the Definitive Agreement, Xxxxxx Xxxxxxx, the THAT CFO,
will give to the parties involved in drafting the Definitive Agreement the
exact figures for inclusion therein.
Xxxxxx and the Trapassos agree to convert such monies owed to them by
THAT, including the Demand Note (valued at $12,805, including accrued
interest) that Xxxxxx is buying from MFI at closing, into equity at
closing at the rate of $1.00 per share. This equity so converted will
not carry any registration, selling shareholder (in the event of an
Offering, as previously defined) or anti-dilution rights.
13. THAT agrees that it will notify MFI within five (5) business days of any
Board of Directors meeting wherein a vote is taken, whether or not
such vote results in a formal Board Resolution, regarding actions THAT
management is directed or empowered to take regarding any
capital-related transaction. "Capital-related transaction" shall be
construed to include any form of debt, equity or hybrid combination
thereof For purposes herein, "notify" shall mean transmission to MFI
via facsimile, hard copy delivered via US Postal or other messenger
service, or electronic transmission via e-mail of the section(s) of the
Board Meeting minutes relating solely to any capital-related
transactions, and a copy of the corresponding Board Resolution if such
resolution is done.
MFI/THAT Agreement in Principal Page 3 of 4
Further, THAT agrees to notify MFI of any and all cash compensation, grants
or other payments totaling more than $5,000 in any given quarter made to
any of the THAT outside Board members, their families or other entities
over which such members or their families have direct or indirect control.
Such notification is to be made no later than ten(10)business days after the
close of each calendar quarter. Also, THAT will issue such a statement to MFI
on
this time schedule indicating no such payments have been made, if such has
been the case during the preceding calendar quarter.
Signed, this 29th day of December, 1999
/s/ Xxxxxx X. Xxxxxx, /s/ Xxxxx xxx Xxxxxxxxx
President, xxxxxxxx.xxx, inc. President, MicroFinancial,
Inc.
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