EXHIBIT 10.10
EXECUTION COPY
MICROFINANCIAL INCORPORATED
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of this
29th day of September, 2004 by and among MicroFinancial Incorporated (the
"Company"), and The CIT Group/Commercial Services, Inc. ("CIT"), along with its
successors and assigns (the "Holders"). Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the Loan Agreement
(as defined below).
W I T N E S S E T H:
WHEREAS, the Leasecomm Corporation (the "Borrower"), a wholly-owned
Subsidiary of Company, and CIT are parties to that certain Revolving Credit
Agreement dated as of the date hereof by and among CIT as agent (as defined in
the Loan Agreement), the lenders party thereto (the "Lenders") and the Borrower
(as amended, modified or restated, the "Loan Agreement");
WHEREAS, in connection with the closing of the Loan Agreement, the Company
has issued to CIT as of the date hereof certain Warrant Certificates to purchase
shares of Common Stock (the "Warrants");
WHEREAS, the Company and CIT wish to enter into a Registration Rights
Agreement as set forth herein;
NOW THEREFORE, in consideration of CIT's agreement to the Loan Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Incidental Registration.
1.1 If the Company at any time proposes to register any of its
equity securities under the Securities Act (other than a Registration (i)
relating to shares of Common Stock issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company or (ii) in connection with an acquisition by the Company of another
company), whether as a result of a primary or secondary offering or pursuant to
registration rights granted to holders of other securities of the Company, the
Company shall, each such time, subject to the provisions of Section 1.2, give
prompt written notice to the Holders of its intention to do so and of such
Holders' rights under this Section 1, at least 20 days prior to the anticipated
filing date of the Registration Statement relating to such Registration. Such
notice shall offer all of the Holders the opportunity to include in such
Registration Statement such number of Registrable Securities as each such Holder
may request. Upon the written request of any such Holder made within 10 days
after the receipt of the Company's notice (which request shall specify the
number of Registrable Securities intended to be disposed of by such Holder), the
Company shall use its best efforts to effect the Registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Holders thereof; provided, that (x) if such
Registration involves an underwritten offering, all Holders requesting to be
included in the Company's Registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the
Company; and (y) if, at any time after giving written notice of its intention to
register any securities pursuant to this Section 1.1 and prior to the Effective
Date of the Registration Statement filed in connection with such Registration,
the Company shall determine for any reason not to register such securities, the
Company shall give written notice to all Holders and shall thereupon be relieved
of its obligation to register any Registrable Securities in connection with such
Registration. If a Registration pursuant to this Section 1.1 involves an
underwritten public offering, any Holder requesting to be included in such
Registration may elect, in writing prior to the effective date of the
Registration Statement filed in connection with such Registration, not to
register such Registrable Securities in connection with such Registration. The
Company shall pay all Registration Expenses in connection with each Registration
of Registrable Securities requested pursuant to this Section 1.
1.2 Priority in Incidental Registrations. If a Registration pursuant
to this Section 1 involves an underwritten offering and the managing underwriter
advises the Company that, in its good faith opinion, the number of equity
securities (including all Registrable Securities) which the Company, the Holders
and any other persons intend to include in such Registration exceeds the largest
number of securities which can be sold without having an adverse effect on such
offering, including the price at which such Registrable Securities can be sold,
the Company will include in such Registration (i) first, the securities that the
Company proposes to sell for the account of other Persons holding certain
warrants having registration rights pursuant to that certain Registration Rights
Agreement, dated April 14, 2003 (ii) second, registrable securities held by
Acorn Capital Group ("Acorn Registrable Securities") proposed to be registered
by the holders thereof, pro rata based on the number of Acorn Registrable
Securities proposed to be registered by each such holder, (iii) third,
registrable securities held by Ampac Capital Solutions, LLC ("Ampac Registrable
Securities") proposed to be registered by the holders thereof, pro rata based on
the number of Ampac Registrable Securities proposed to be registered by each
such holder, (iv) fourth, the Registrable Securities and (v) fifth, securities
that the Company proposes to issue and sell for its own account.
1.3 Filing of Registration Statement. The Company shall file a
Registration Statement on Form S-3 with the Commission no later than December
31, 2004 registering (i) the shares of Common Stock issuable to the Holders upon
exercise of the Warrants, (ii) any other shares of Common Stock (or warrants
exercisable for Common Stock) subject to registration rights (if such holders
desire such shares to be registered). Such Registration (i) shall not be an
underwritten offering and (ii) shall be subject to all provisions of this
Agreement, including without limitation, Sections 2.2 and 2.11, provided,
however that such Registration shall not be subject to the provisions of Section
1.2 hereof. The Company shall use its best efforts to have such Registration
Statement declared Effective by the Commission within 180 days after the date
hereof.
2. Registration Procedures. In connection with any offering of Registrable
Securities registered pursuant to this Agreement, the Company shall:
2.1 Use commercially reasonable efforts to cause such Registration
Statement to become and remain Effective as provided herein, provided that at
least fifteen (15) days prior to filing with the Commission a Registration
Statement or disclosure document constituting part of a Registration Statement
or any amendments or supplements thereto, the Company will (x)
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furnish to one counsel selected by the Holders of a majority of the Registrable
Securities covered by such Registration Statement copies of all such documents
proposed to be filed for said counsel's review and comment and (y) notify each
Holder covered by such Registration Statement of any stop order issued or
threatened by the Commission and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered.
2.2 Prepare and file with the Commission such amendments and
supplements to such Registration Statement and any disclosure document
constituting part of such Registration Statement used in connection therewith as
may be necessary to keep Effective such Registration Statement for a period of
not less than 180 days or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold
(but not before the expiration of the 90 day period, if applicable, referred to
in Section 4(3) of the Securities Act and Rule 174 under the Securities Act, or
any successor thereto, if applicable), and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement.
2.3 Furnish to each Holder and each underwriter, if any, of
Registrable Securities covered by such Registration Statement such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto), and the disclosure document included
in such Registration Statement (including each preliminary disclosure document),
in conformity with the requirements of the Securities Act, and such other
documents as any Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder.
2.4 Use commercially reasonable efforts to register or qualify such
Registrable Securities under such other state securities or "blue sky" laws of
such jurisdictions as any Holder, and underwriter, if any, of Registrable
Securities covered by such Registration Statement reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such Holder and each underwriter, if any, to consummate the disposition
in such jurisdictions of the Registrable Securities owned by such Holder;
provided that the Company will not be required to (x) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 2, (y) subject itself to taxation in any such jurisdiction
or (z) consent to general service of process in any such jurisdiction.
2.5 Immediately notify each Holder of such Registrable Securities at
any time when a disclosure document relating thereto is required to be delivered
under the Securities Act of the happening of any event which comes to the
Company's attention if as a result of such event the disclosure document
included in such Registration Statement contains an untrue statement of material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and promptly prepare
and furnish to such Holder a supplement or amendment to such disclosure document
so that, as thereafter delivered to the Holders of such Registrable Securities,
such disclosure document will not contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
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2.6 Use commercially reasonable efforts to cause all such
Registrable Securities to be listed on a national securities exchange or the
NASDAQ National Market and on each securities exchange upon which similar
securities issued by the Company may then be listed, and enter into such
customary agreements including a listing application and indemnification
agreement in customary form, and to provide a transfer agent and registrar for
such Registrable Securities covered by such Registration Statement no later than
the effective date of such Registration Statement.
2.7 Enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Holders of a
majority of the Registrable Securities being covered by such Registration
Statement or the underwriters retained by such Holders, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities, including customary representations, warranties, indemnities and
agreements.
2.8 Make available for inspection by any Holder covered by such
Registration Statement, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other
agent retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's and its Affiliates'
officers, directors and employees to supply all information and respond to all
inquiries reasonably requested by any such Inspector in connection with such
Registration Statement.
2.9 In connection with any underwritten offering, use commercially
reasonable efforts to obtain (a) a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by "cold comfort" letters as the Holders of a
majority in interest of the Registrable Securities being sold and the
underwriters reasonably request and (b) at the time of any underwritten sale
pursuant to a Registration Statement, a "bring-down comfort letter", dated as of
the date of such sale, from the Company's independent certified public
accountants covering such matters of the type customarily covered by comfort
letters as the Holders of a majority in interest of the Registrable Securities
covered by such Registration Statement and the underwriters reasonably request.
2.10 Otherwise use commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make available to
the Holders, as soon as reasonably practicable, an earnings statement covering a
period of at least twelve months, beginning with the first month after the
Effective Date of the Registration Statement, which earnings statement shall
satisfy the provisions of the Securities Act and Rule 158 thereunder.
2.11 In the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Securities included in such Registration Statement for sale in
any jurisdiction, the Company will use its best efforts promptly to obtain the
withdrawal of such order.
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It shall be a condition precedent to the obligation of the Company to take
any action with respect to securities of a Holder that such Holder shall furnish
to the Company such information regarding the securities held by such Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.5, such Holder
will forthwith discontinue disposition of Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended disclosure
document contemplated by Section 2.5 hereof, and, if so directed by the Company,
such Holder will deliver to the Company (at the Company's expense) all copies
(including, without limitation, any and all drafts), other than permanent file
copies, then in such Holder's possession, of the disclosure document covering
such Registrable Securities current at the time of receipt of such notice. In
the event the Company shall give any such notice, the period mentioned in
Section 2.2 shall be extended by the greater of (x) three months or (y) the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 2.5 hereof to and including the date when each
Holder covered by such Registration Statement shall have received the copies of
the supplemented or amended disclosure document contemplated by Section 5.6.
3. Indemnification.
3.1 Indemnification by the Company. In the event of any Registration
of any securities of the Company under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless, to the full extent
permitted by law, each of the Holders of any Registrable Securities covered by
such Registration Statement, their respective directors and officers, general
partners, limited partners and managing directors, each person who participates
as an underwriter in the offering or sale of such securities and each other
person, if any, who controls, is controlled by or is under common control with
any such Holder or any such underwriter within the meaning of the Securities Act
(and directors, officers, controlling persons, partners and managing directors
of any of the foregoing), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including any amounts paid in any
settlement effected with the Company's consent, which consent will not be
unreasonably withheld) to which such Holder, any such director or officer or
general or limited partner or managing director or any such underwriter or
controlling person may become subject under the Securities Act, state securities
or "blue sky" laws, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) or
expenses arise out of or are based upon (i) any untrue statement or 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, final or summary disclosure document
contained therein, or any amendment or supplement thereto, (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of any federal, state or common
law rule or regulation applicable to the Company and relating to action required
of or inaction by the Company in connection with any such Registration. The
Company shall reimburse each such Holder and each such director, officer,
general partner, limited partner, managing director or underwriter and
controlling person
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for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending such loss, claim, liability, action or
proceeding, provided, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement or amendment or supplement thereto or in any such
preliminary, final or summary disclosure document in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such Holder in its capacity as a Holder in the
Company or any such director, officer, general or limited partner, managing
director or underwriter specifically stating that it is for use in the
preparation thereof. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Holder or any such director, officer, general partner, limited partner, managing
director, underwriter or controlling person and shall survive the transfer of
such securities by such Holder.
3.2 Indemnification by the Holders and Underwriters. Any Holder the
Registrable Securities of which are included in any Registration Statement
shall, severally (and not jointly with any other Holder), indemnify and hold
harmless (in the same manner and to the same extent as set forth in paragraph
(a) above) the Company and its directors, officers, controlling persons from
such Registration Statement, any preliminary, final or summary disclosure
document contained therein, or any amendment or supplement, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company or its
representatives through an instrument duly executed by or on behalf of such
Holder specifically stating that it is for use in the preparation of such
Registration Statement, preliminary, final or summary disclosure document or
amendment or supplement, or a document incorporated by reference into any of the
foregoing. No Holders shall be liable in the aggregate for any amounts exceeding
the product of the sale price per Registrable Security (after deduction of
applicable underwriting discounts and commissions and transfer taxes) and the
number of Registrable Securities sold pursuant to such Registration Statement or
disclosure document by such Holder.
3.3 Notices of Claims, Etc. Promptly after receipt by an indemnified
party hereunder of written notice of the commencement of any action or
proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 3, such indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, promptly give written
notice to the indemnifying party of the commencement of such action, provided
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the preceding
subsections of this Section, except to the extent that the indemnifying party is
actually materially prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
will be entitled to participate in and, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, to the extent that it
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof, unless in such
indemnified party's reasonable judgment a
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conflict of interest between such indemnified party and the indemnifying party
arises in respect of such claim after the assumption of the defense thereof, and
the indemnifying party will not be subject to any liability for any settlement
made without its consent (which consent shall not be unreasonably withheld). No
indemnifying party will consent to any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation. An indemnifying party who is not
entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel in any single
jurisdiction for all parties indemnified by such indemnifying party with respect
to such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels as may be reasonably necessary. Notwithstanding
anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party will have the right to retain, at
its own expense, counsel with respect to the defense of a claim.
3.4 Other Indemnification. Indemnification similar to that specified
in the preceding subsections of this Section 3 (with appropriate modifications)
shall be given by the Company and each Holder with respect to any required
Registration or other qualification of securities under any federal or state law
or regulation or governmental authority other than the Securities Act.
3.5 Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable although applicable in
accordance with its terms, the Company, the Holders and the underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company, the
Holders and the underwriters, in such proportions that the underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing in the disclosure document bears to the public offering price
appearing therein and the Company and the Holders are responsible for the
balance; provided, however, that 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. As between the Company and the Holders, such
parties shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect (x) the relative benefits received
by the Company, on the one hand, and the Holders of the Registrable Securities
included in the offering on the other hand, from the offering of the Registrable
Securities and any other securities included such offering, and (y) the relative
fault of the Company, on the one hand, and the Holders of the Registrable
Securities included in the offering, on the other, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Holders of the Registrable Securities on the other, with respect to such
offering shall be deemed to be in the same proportion as the sum of the total
purchase price paid to the Company in respect of the Registrable Securities plus
the total net proceeds from the offering of any securities included in
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such offering (before deducting expenses) received by the Company bears to the
amount by which the total net proceeds from the offering of Registrable
Securities (before deducting expenses but after deducting applicable
underwriting discounts and commissions and transfer taxes) received by the
Holders of the Registrable Securities with respect to such offering exceeds the
purchase price paid to the Company in respect of the Registrable Securities, and
in each case the net proceeds received from such offering shall be determined as
set forth in the disclosure document. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Holders of the Registrable
Securities, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders of the Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Section were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
Notwithstanding anything to the contrary contained herein, the Company and the
Holders agree that any contribution required to be made by such Holder pursuant
to this Section 3.5 shall not exceed the net proceeds from the offering of
Registrable Securities (before deducting expenses but after deducting applicable
underwriting discounts and commissions and transfer taxes) received by such
Holder with respect to such offering. For purposes of this Section, each Person,
if any, who controls a Holder or an underwriter within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as such Holder
or underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
3.6 Rule 144. The Company will furnish to any Holder, upon request
made by such Holder at any time, a written statement signed by the Company,
addressed to such Holder, describing briefly the action the Company has taken or
proposes to take to comply with the current public information requirements of
Rule 144 or Rule 144A. The Company will, at the request of any Holder, remove
from the stock certificates representing such Registrable Securities that
portion of any restrictive legend which relates to the registration provisions
of the Securities Act on the second anniversary date of this Agreement, provided
that the Holder is not at this time (or within the previous 90 days) an
affiliate of the Company.
4. Deferral; Blackout. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the Holders named in any registration
statement filed hereunder a certificate signed by the President or Chief
Executive Officer of the Company stating that the Board of Directors of the
Company has made the good faith determination (after consultation with counsel)
(i) that continued use by the Holders of the Registration Statement for purposes
of effecting offers or sales of Registrable Securities pursuant thereto would
require, under the Securities Act, premature disclosure in such registration
statement (or the prospectus relating thereto) of material, nonpublic
information (the "Non-Public Information") concerning the Company, its business
or prospects or any proposed material transaction involving the Company, (ii)
that such premature disclosure would be materially adverse to the Company or any
such proposed material transaction or would make the successful consummation by
the Company of any such material transaction significantly less likely and (iii)
that it is therefore essential to suspend the use by the Holders of such
registration statement (and the prospectus relating
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thereto) for purposes of effecting offers or sales of Registrable Securities
pursuant thereto, then the right of the Holders to use the registration
statement (and the prospectus relating thereto) for purposes of effecting offers
or sales of Registrable Shares pursuant thereto shall be suspended for a period
(the "Suspension Period") of not more than 120 days after delivery by the
Company of the certificate referred to above in this Section 4. During the
Suspension Period, none of the Holders shall offer or sell any Registrable
Securities pursuant to or in reliance upon the registration statement (or the
prospectus relating thereto). Notwithstanding the foregoing (a) if disclosure of
the Non-Public Information is made during a Suspension Period, then the Company
shall promptly terminate the Suspension Period and immediately notify the
Holders of such termination and (b) the Company may not implement the right to
initiate a Suspension Period more than twice in any twelve month period. To the
extent that the Company initiates one or more Suspension Periods hereunder, the
Company shall maintain the effectiveness of the Registration Statement for an
additional number of days equal to the aggregate amount of days that the Company
implemented such Suspension Periods.
5. Miscellaneous.
5.1 No Waiver; Cumulative Remedies. No failure or delay on the part
of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other further exercise
thereof or the exercise of any other right, power or remedy hereunder.
5.2 Notices. All notices and other communications from the Company
to the Holders shall be mailed by recognized overnight courier first class
registered or certified air mail, postage prepaid, at such address as may have
been furnished to the Company in writing by such Holder, or, until an address is
so furnished, to and at the address of the last Holders who has so furnished an
address to the Company.
5.3 Modification, Etc. This Agreement and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the Holders of a majority of the Registrable Securities and the
Company. This Agreement is being delivered in the Commonwealth of Massachusetts
and shall be construed and enforced in accordance with and governed by the laws
of such commonwealth without regard to its conflict of laws principles. All
section headings herein are for purposes of reference only and shall not limit
or otherwise affect the meaning hereof.
5.4 No Inconsistent Agreements. The Company will not, at any time
after the effective date of this Agreement, enter into any agreement or contract
(whether written or oral) with respect to any of its securities which is
inconsistent in any respect with the registration rights granted by the Company
to the Holders of the Warrants pursuant to this Agreement or otherwise conflicts
with the provisions hereof.
5.5 Assignment. This Agreement shall inure to the benefit and be
binding upon each Holder and its heirs, successors and assigns (an "Assignee").
The Company's obligations under this Agreement shall not be assigned, and its
duties under this Agreement shall
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not be delegated. Each Assignee shall execute a counterpart joinder signature
page and shall become a "Holder" for all purposes of this Agreement.
5.6 Legend. Any shares issued in connection with the exercise of the
Warrants shall bear the following legend:
THE SECURITIES EVIDENCED BY THIS INSTRUMENT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND HAVE BEEN TAKEN FOR
INVESTMENT PURPOSES ONLY, AND NOT WITH A VIEW TO THE
DISTRIBUTION THEREOF, AND SUCH SECURITIES MAY NOT BE
SOLD, PLEDGED OR TRANSFERRED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT
COVERING SUCH SECURITIES OR THE COMPANY RECEIVES AN
OPINION OF COUNSEL (WHICH MAY BE COUNSEL FOR THE
COMPANY), REASONABLY SATISFACTORY IN FORM AND CONTENT
TO THE COMPANY, STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF THE ACT.
6. Certain Definitions.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act of the Exchange Act.
"Common Stock" shall mean the Company's common stock, $0.01 par value per
share.
"Effective" shall mean that all requirements under the Securities Act with
respect to a Registration Statement have been satisfied and that the Commission
has declared the Registration Statement effective.
"Effective Date" shall mean the date on which a Registration Statement has
been declared Effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Registrable Securities" shall mean (i) all shares of Common Stock and
other securities issued or issuable upon exercise of the Warrants, and (ii) all
shares of Common Stock and other securities directly or indirectly issued or
issuable with respect to such Common Stock or other securities by way of stock
dividend, or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they have been (a) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them
or (b) distributed to the public through a broker, dealer or market maker
pursuant to Rule 144 under the Securities Act.
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"Registration" shall mean registration of the Company's Common Stock
pursuant to an Effective Registration Statement.
"Registration Statement" shall mean any disclosure document that the
Company is required to file under the Securities Act in connection with a public
offering of Registrable Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time or any other federal act, rule or regulation requiring Registration
with any federal agency in connection with a public offering of Registrable
Securities.
11
IN WITNESS WHEREOF, MICROFINANCIAL INCORPORATED has caused this
Registration Rights Agreement to be duly executed as a document under seal by
its duly authorized officer this 29th day of September, 2004.
MICROFINANCIAL INCORPORATED
By: /s/ Richard F. Latour
------------------------------------
Richard F. Latour, President
THE CIT GROUP COMMERCIAL SERVICES, INC.
By: /s/ Daniel B.Ciotti
-----------------------------------
Daniel B. Ciotti, Vice President
12
SCHEDULE A
HOLDERS
The Cit Group/Commercial Services, Inc.
COUNTERPART JOINDER SIGNATURE PAGE
The undersigned, the owner or holder of the securities of MicroFinancial
Incorporated, a Massachusetts corporation, hereby agrees to become a party to
that certain Registration Rights Agreement dated as of September 29, 2004 (as
amended and/or restated from time to time, the "AGREEMENT"), with respect to the
securities listed next to the undersigned's name in Exhibit A, as applicable.
This Counterpart Joinder Signature Page shall become a part of such Agreement.
[IF INSTITUTIONAL HOLDER] _________________________________________
By (Signature): _________________________
Name (Print): _________________________
Title: _________________________
Address: _________________________
[IF INDIVIDUAL] Signature: _________________________
Name (Print): _________________________
Address: _________________________